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THE AMERICAN NATION 
A HISTORY 

FROM ORIGINAL SOURCES BY ASSOCIATED SCHOLARS 
EDITED BY 

ALBERT BUSHNELL HART, LL.D. 

PROFESSOR OF HISTORY IN HARVARD UNIVERSITY 

ADVISED BY 
VARIOUS HISTORICAL SOCIETIES 

IN 27 VOLUMES 
VOL. 10 



THE AMERICAN NATION 
A HISTORY 



LIST OF AUTHORS AND TITLES 

Group I. 

Foundations op the Nation 

Vol. I European Background of American 
History, by Edward Potts Chey- 
ney, A.M., Prof. Hist. Univ. of Pa. 

" 2 Basis of American History, by 
Livingston Farrand, M.D., Prof. 
Anthropology Columbia Univ. 

" 3 Spain in Ameri ca, by Edward Gay- 
lord Bourne, Ph.D., Prof. Hist. 
Yale Univ. 

** 4 England in America, by Lyon Gar- 
diner Tyler, LL.D., President 
William and Mary College. 

" 5 Colonial Self -Government, by 
Charles McLean Andrews, Ph.D., 
Prof. Hist. Johns Hopkins Univ. 

Group II. 

Transformation into a Nation 

Vol. 6 Provincial America, by Evarts 
Boutell Greene, Ph.D., Prof. Hist, 
and Dean of College, Univ. of 111. 
" 7 France in America, by Reuben 
Gold Thwaites, LL.D., Sec. Wis- 
consin State Hist. Soc. 



Vol. 8 Preliminaries of the Revolution, 
by George Elliott Howard, Ph.D., 
Prof. Hist. Univ. of Nebraska. 

'* 9 The American Revolution, by- 
Claude Halstead VanTyne,Ph.D., 
Prof. Hist. Univ. of Michigan. 

" 10 The Confederation and the Consti- 
tution, by Andrew Cunningham 
McLaughlin, A.M., Head Prof. 
Hist. Univ. of Chicago. 

Group III. 

Development of the Nation 

Vol. II The Federalist System, by John 
Spencer Bassett, Ph.D., Prof. 
Am. Hist. Smith College. 

" 12 The Jeffersonian System, by Ed- 
ward Channing, Ph.D., Prof. Hist. 
Harvard Univ. 

" 13 Rise of American Nationality, by 
Kendric Charles Babcock, Ph.D., 
Pres. Univ. of Arizona. 

" 14 Rise of the New West, by Freder- 
ick Jackson Turner, Ph.D., Prof. 
Am. Hist. Univ. of Wisconsin. 

" 15 Jacksonian Democracy, by Will- 
iam MacDonald, LL.D., Prof. 
Hist. Brown Univ. 

Group IV. 

Trial of Nationality 

Vol. 16 Slavery and Abolition, by Albert 
Bushnell Hart, LL.D., Prof. Hist. 
Harvard Univ. 



Vol.17 Westward Extension, by George 
Pierce Garrison, Ph.D., Prof. 
Hist. Univ. of Texas. 

*' 18 Parties and Slavery, by Theodore 
Clarke Smith, Ph.D., Prof. Am. 
Hist. Williams College. 

'* 19 Causes of the Civil War, by Admiral 
French Ensor Chadwick, U.S.N., 
recent Pres. of Naval War Col. 

'* 20 The Appeal to Arms, by James 
Kendall Hosmer, LL.D., recent 
Librarian Minneapolis Pub. Lib. 

" 21 Outcome of the Civil War, by 
James Kendall Hosmer, LL.D., re- 
cent Lib. Minneapolis Pub. Lib. 

Group V. 
National Expansion 
Vol. 22 Reconstruction, Political and Eco- 
nomic, by William Archibald Dim- 
ning, Ph. D. , Prof. Hist, and PoHti- 
cal Philosophy Columbia Univ. 

'* 23 National Development, by Edwin 
Erie Sparks, Ph.D., Prof. Ameri- 
can Hist. Univ. of Chicago. 

** 24 National Problems, by Davis R. 
Dewey, Ph.D., Prof essor of Eco- 
nomics, Mass. Institute of Tech- 
nology. 

" 25 America as a World Power, by 
John H. Latane, Ph.D., Prof. 
Hist. Washington and Lee Univ. 

" 26 National Ideals Historically 
Traced, by Albert Bushnell Hart, 
LL.D., Prof. Hist. Harvard Univ. 

" 27 Index to the Series, by David 
Maydole Matteson, A.M. 



COMMITTEES APPOINTED TO ADVISE AND 
CONSULT WITH THE EDITOR 



The Massachusetts Historical Society 

Charles Francis Adams, LL.D.. President 
Samuel A. Green, M.D., Vice-President 
James Ford Rhodes, LL.D., ad Vice-President 
Edward Channing, Ph.D., Prof. History Harvard 

Univ. 
Worthington C. Ford, Chief of Division of MSS. 

Library of Congress 

The Wisconsin Historical Society 

Reuben G. Thwaites, LL.D., Secretary and Super- 
intendent 

Frederick J. Turner, Ph.D., Prof, of American His- 
tory Wisconsin University 

James D. Butler, LL.D., formerly Prof. Wisconsin 
University 

William W, Wight, President 

Henry E. Legler, Curator 

The Virginia Historical Society 

William Gordon McCabe, Litt.D., President 

Lyon G. Tyler, LL.D., Pres. of William and Mary 

College 
Judge David C. Richardson 
J. A. C. Chandler, Professor Richmond College 
Edward Wilson James 

The Texas Historical Society 

Judge John Henninger Reagan, President 
George P. Garrison, Ph.D., Prof, of History Uni- 
versity of Texas 
Judge C. W, Raines 
Judge Zachary T. FuUmore 




JAMES MADISON 



THE AMERICAN NATION : A HISTORY 

VOLUME 10 

THE CONFEDERATION 
AND THE CONSTITUTION 

1 783-1 789 



BY 

ANDREW CUNNINGHAM McLAUGHLIN, LL.B. 

PROFESSOR OF AMERICAN HISTORY IN UNIVERSITY MICHIGAN 



WITH MAPS 




NEW YORK AND LONDON 
HARPER & BROTHERS PUBLISHERS 



Copyright, 1905, by Harper & Brothbrs. 
Printed in the United States of America 






TO 

THE MEMORY OF 
MY FATHER AND MOTHER 



CONTENTS 

CHAP. PAGE 

Editor's Introduction xv 

Author's Preface xvii 

I. The End op the Revolution (i 781-1782) . 3 

II. The Treaty of Paris (1782-1784) .... 18 

III. The Problem of Imperial Organization 

(1775-1787) 35 

IV. Poverty and Peril (i 781-1783) 53 

V. Commercial and Financial Conditions (1783- 

1786) 71 

VI. Diplomatic Relations (i 783-1 788) .... 89 

VII. Founding a Colonial System (i 783-1 787) . 108 

VIII. Founding of New Commonwealths (1787- 

1788) 123 

IX. Paper Money (1781-1788) 138 

X. Shays's Rebellion (1786-1787) 154 

XI. Proposals to Alter the Articles of Con- 

federation (1781-1786) 168 

xii. Plan for a National Government (1787) . 184 

XIII. Shall the Confederation be Patched Up? 

(1787) 201 

XIV. The Great Compromise (1787) 221 

XV. The Law of the Land (1787) 236 

xiii 



xiv , CONTENTS 

CHAP. PAGE 

XVI. Further Compromises and the Conclusion 

OF THE Convention's Work (1787) . . 253 

xvii. The Constitution before the People 

(1787-1788) . 277 

xviii. For Better or for Worse (1788) . . . 298 

XIX. Critical Essay on Authorities , . . . 318 

Index • . . 337 



MAPS 
Division of the West Proposed by France 

Sept. 6, 1782 (in colors) facing 14 

North America (1783) {in colors) .... ** 40 
State Claims to Western Lands (1783- 

1802) (in colors) " 108 

Proposed Division of Western Lands 

(April 23, 1784) " 116 

The West (1783-1789) " i34 

Distribution of Votes in Ratification 

OF the Constitution, Middle and 

Southern States (1787-1788). ... '* 278 
Distribution of Votes in Ratification 

of the Constitution, New England 

(1787-1790) *' 300 



EDITOR'S INTRODUCTION 

TO the years from 1783 to 1789, Fiske has given 
the name of "The Critical Period of American 
History"; yet it seems doubtful whether it was 
really a time of such danger of national dissolution 
as people then and since have supposed. Certainly 
the trend of this volume is to show a more orderly, 
logical, and inevitable march of events than has 
commonly been described. The volume articulates 
very closely with Van Tyne's American Revolution 
(vol. IX.), taking as a starting-point the defeat 
of the king's friends in Parliament in the spring of 
1 782 ; at the other end the volume leaves for Bassett's 
Federalist System (vol. XL), the statutes and pre- 
cedents by which the Constitution was set in motion. 
The voltune naturally falls into four parts: or- 
ganization; the government of the Confederation; 
the constitutional convention; and ratification. In 
chapters i. and ii., the peace negotiations are de- 
scribed in some detail. Chapter iii., on Imperial 
Organization, is a luminous discussion of the possi- 
bilities of national government in view of the char- 
acter and political aptitude of the people; it is 
logically the culmination of the discussions of the 

XV 



xvi EDITOR'S INTRODUCTION 

two previous volumes, and the starting-point for 
the author's later deductions. 

In chapter iv. begins the second part of the 
volume, the governmental experience of the Con- 
federation, financial, commercial, diplomatic, paper 
money, culminating (chap, x.), in Shays's rebellion 
of 1 786-1 787. Chapters vii. and viii. are given to 
an account of the West, continuing the subject 
treated by Howard's Preliminaries of the Revolution 
(chap, xiii.), and Van Tyne's American Revolution 
(chap. XV.), and emphasizing it as a part of the 
new national organization. 

Chapters xi. to xvi. describe the movement for 
a convention, its culmination, and the work of pre- 
paring the Constitution and fitting its parts to- 
gether. The process of ratification is described in 
chapters xvii. and xviii. The Critical Essay deals in 
great measure with sources and monographic material. 

The special service of this volume is to bring 
out the relation of earlier experiences and forms 
of government to the final work of the convention. 
The Confederation is a preparatory stage, which, in 
the author's judgment, was more creditable to the 
men of that time than posterity has been willing 
to allow. It had viability in itself, and from its 
mistakes the framers of the Constitution learned 
wisdom. Throughout the book attention is paid 
to the capacity and accomplishment of the American 
people, and to their working out of tried and familiar 
principles into a new and more effective combination. 



AUTHOR'S PREFACE 

IN the following pages I have sought to bring 
out clearly the main course of events from the 
final defeat of Comwallis to the establishment of the 
Federal Constitution. In the space allotted me 
there was no room for the discussion of the episod- 
ical or the picturesque, or for the treatment in 
detail of many topics that might deserve con- 
sideration. Everything, or nearly everything, had 
to be subordinated to the main theme, in order that 
the story of political achievement might stand out 
with distinctness; for no history of the American 
nation would be satisfactory which left in dim 
obscurity the tale of how the people in the years 
after the war— when beset with difficulties and 
troubled by a political order which was unsuited to 
their needs— proceeded *' deliberately and peace- 
ably, without fraud or surprise," to establish a 
national xmion and to adjust political powers in a 
complicated and elaborate system of government. 
The years imder consideration in this volimie al- 
lowed, if they did not demand, this method of treat- 
ment; and I have felt fully justified, therefore, in 
considering even such themes as the diplomatic 
VOL. X.-2 xvii 



xviii AUTHOR'S PREFACE 

relations, or the western movement of population, 
in connection with the constitutional history of the 
United States. 

I cannot refrain from saying that the centre of 
my treatment is marked out in the third chapter, 
which I have called "The Problem of Imperial 
Organization"; surely the period is seen in its 
ampler aspects, if the task of forming a substantial 
union and of solving an intricate political problem 
is not treated in isolation, but discussed as part of 
the great question that confronted the English 
statesmen in 1765 and largely occupied the attention 
of a generation. The third chapter, therefore, with 
the chapter on " Proposals to Alter the Articles of 
Confederation," and the one entitled ''The Law 
of the Land," are, as I have conceived the book, 
the most important. Though necessarily separated, 
they should logically supplement one another. 

Perhaps I should say, also, that I have taken 
seriously the wish of the editor that the volimies 
should be based on original materials. Though I 
have been helped by many secondary writers, al- 
most nothing is taken from them without verifica- 
tion in the sources ; and in many cases the second- 
ary writers are referred to because they contain the 
original material desired. 

I wish to express my appreciation of the scholarly 
care with which the editor has examined my man- 
uscript and proof. Professor O. G. Libby kindly 
granted permission to reproduce two maps, first 



AUTHOR'S PREFACE xix 

appearing in connection with his valuable mono- 
graph on the Geographical Distribution of the Vote 
of the Thirteen States on the Federal Constitution, 
I'jSj-S. Mr. James Herbert Russell has been of 
great service in reading the proofs of these pages, 
and that fact has given me the comfortable as- 
surance that, whatever other errors I may have in- 
advertently made, the quotations and references 
approach absolute exactness. 

Andrew C. McLaughlin. 



THE CONFEDERATION 
AND THE CONSTITUTION 



THE CONFEDERATION 
AND THE CONSTITUTION 

CHAPTER I 

THE END OF THE REVOLUTION 
(1781-1782) 

THE defeat of Cornwallis at Yorktown "demon- 
strated the inability of England to conquer 
America. Throughout the war George III., with 
characteristic perseverance, had clung resolutely to 
the purpose of overcoming the rebellious colonists, 
and when this last disaster came he still spoke of 
continuing the contest. But the opposition in 
Parliament gained force daily, and it soon became 
evident, even to the obdurate monarch, that he 
must give way. 

At the end of 178 1 England saw herself surrounded 
and beset by enemies; Spain, France, and Holland 
were arrayed in arms against her; no ally on the 
Continent gave her encouragement or assistance ; her 
colonies were gone ; disasters in various parts of the 
world seemed to bring both ignominy and defeat. 

3 



4 CONFEDERATION AND CONSTITUTION [1782 

The assaults on the ministry were repeated at in- 
tervals throughout the winter, and on March 20, 
1782, Lord North announced his resignation. He 
had many times before asked the king to relieve him 
from office, but he had retained his position because 
of the solicitation of his sovereign. With him dis- 
appeared all purpose of conquering America and 
all hope of maintaining in its impurity the personal 
and arbitrary government of George III.* 

The king was so overcome with chagrin that he 
actually threatened to flee to Hanover. The royal 
yacht was said to be in readiness to carry the royal 
suite across the channel. He assured North that 
his sentiments of honor would not permit him to 
send for any of the party of the opposition and 
personally treat with them ; but he soon took heart, 
and, though he insultingly refused to negotiate with 
Rockingham except through a mediator, he was 
ultimately compelled to accept that minister as the 
head of a new cabinet.^ Rockingham had been 
persistently the friend of the Americans. The 
Whigs whom he represented are said even to have 
called the American army *' our army " and to have 
rejoiced at American successes.^ George III. hated 

* Donne, Correspondence of George III. with Lord North, II., 
393. 398- See also Van Tyne, American Revolution {American 
Nation, IX.), chap. xvii. 

' May, Const. Hist, of England (Am. ed. of 1863), I., 59; Letters 
of Horace Walpole (Cunningham's ed.), VIII., 187; Donne, Cor- 
respondence of George IIL with Lord North, II., 415; Albemarle, 
Memoirs of Rockingham, II., 451-464. 

' Lecky, England in the Eighteenth Century, IV., 76, 



1782] END OF THE REVOLUTION 5 

them with a virile hatred. Lord North is said to 
have jokingly remarked that the Whigs had accused 
him in the past of issuing false bulletins, but that 
he never issued one so false as that in which his 
successors announced their accession to office, each 
paragraph of which began with the words, ''His 
majesty has been pleased to appoint.'* 

Besides Rockingham, who was prime-minister and 
without whose influence a ministry could not have 
been formed, Lord Shelbume and Charles James 
Fox entered the cabinet; the former took the home 
and colonial departments; Fox, the brilliant de- 
bater, the ardent friend of America, was made 
secretary of state for foreign affairs. It was plain 
that peace must soon come on the basis of inde- 
pendence for the rebellious colonies; in fact, Rock- 
ingham had refused to take office on any other 
basis.* The cabinet, however, was made up of 
diverse elements, was confronted with intricate 
problems, and was soon distracted by internal dis- 
sension. Fox and Shelbume were incompatible in 
temperament. Fox was frank, outspoken, and head- 
strong. Shelbume had the reputation of being in- 
sincere and fond of following devious paths to a 
goal that lay straight before him. False or not, 
he was a man of ideas and of broad statesmanship, 
and it is a matter of no small importance for 
America that there now came into commanding 

* Fitzmaurice, Shelbume, III., 133; Albemarle, Memoirs of 
Rockingham, II., 453, 



6 CONFEDERATION AND CONSTITUTION [1779 

position a man who could look a big question in the 
face. 

There were various grounds of dissension be- 
tween the two secretaries, each of whom was sus- 
picious of the other. Among other difficulties arose 
the question as to the method of treating with 
America. If the commissioners from the United 
States were to be considered representatives of a 
free cotmtry, negotiations would naturally be con- 
ducted by Fox. If, on the other hand, the states 
were to be granted their independence only as a 
result of the treaty, the business naturally fell in 
Shelburne's department. Fox contended that by 
a minute adopted on May 23 the cabinet had 
practically recognized American independence; but 
to this construction Shelbume could not agree. 
Fox also felt that the colonial secretary was not 
acting frankly in the conduct of certain negotiations 
which Mr. Oswald was carrying on quite informally 
with Dr. Franklin at Paris. The end came soon. 
Rockingham, who for some time past had been in 
ill health, died July i, 1782; Fox immediately re- 
signed and Shelburne was made prime-minister. 

The American Congress had long since made prep- 
arations for peace. At first John Adams received 
appointment as sole commissioner.^ But Adams 
was intractable and blunt, and succeeded in getting 
into difficulties with Vergennes in Paris. The 
French minister to America, whose business it was to 

* Secret Journals of Congress, October 4, 1779. 



1782] END OF THE REVOLUTION 7 

look out for his master's interests, secured the ap- 
pointment of four additional commissioners — Ben- 
jamin Franklin, John Jay, Henry Laurens, and 
Thomas Jefferson.^ Jefferson at first declined to 
serve, and, though he accepted a second appoint- 
ment, he did not, in fact, leave America. Laurens, 
having been captured by the British in crossing the 
ocean, was, at the time of his appointment, a 
prisoner in London, and after his release was unable 
to take a prominent part in the negotiations for 
peace. Adams, in the summer of 1782, was busy 
at The Hague, where he at last succeeded in making 
a treaty with the Netherlands, winning for himself, 
to his infinite delight, the title of the " Washington 
of Negotiations." He, too, was not ready in the 
spring to take part in the discussions that were 
beginning at Paris between Franklin and the 
English representative, Oswald. 

Jay had for some time been in Spain, following the 
Spanish court about and seeking with such humility 
as he possessed to secure for his country an ac- 
knowledgment of independence and the grant of a 
few much-needed piasters.^ His experiences had 
been irritating in the extreme, and when Franklin 
summoned him to Paris in the spring of 1782 he 
shook the Spanish dust from willing feet and passed 
over the Pyrenees to the pleasanter task of negotiat- 
ing for peace with men that were willing to treat 

* Secret Journals of Congress, June 13, 14, 1781. 

' Wharton, Dtp. Corresp. of Am. Rev., IV., 65, 102, V., 68. 



8 CONFEDERATION AND CONSTITUTION [1779 

him with respect and consideration. A good deal of 
American history is contained in Franklin's message 
asking Jay to come to his aid in France. " Spain has 
taken four years to consider whether she should treat 
with us or not," said he. "Give her forty, and let 
us in the meantime mind our own business." * 

The burden of the early negotiations fell, there- 
fore, on the shoulders of Franklin and of his young 
colleague. Franklin was then one of the most 
famous men in Europe. He was versed in the 
methods of diplomacy, for his earlier experiences in 
England as colonial agent may well be called 
diplomatic, and during his stay in Paris, which was 
the centre of continental interest, he had taken 
many a lesson. He was naturally shrewd, discern- 
ing, and sagacious. He had become wonted to 
French society, which he doubtless foimd agreeable. 
He was a firm believer in Vergennes*s fairness of 
purpose, and he was not ready or not willing to 
suspect foul play or insidious intrigue. Jay was 
then thirty-six years of age, but he had already 
played a conspicuous role in politics. He was 
proud-spirited, sensitive, and bold. His life in 
Spain had not been conducive to peace of mind, 
and even before he left that coimtry he had gathered 
some serious doubts as to the good faith and friendly 
purpose of the French ministry.^ He did not fit 
easily into the life of Paris, but retained an en- 

* Jay, Corresp. and Public Papers, II., 193. 
*Ibid., 62, 71, 72, 75, 96, 292. 



17^2] END OF THE REVOLUTION 

thusiastic patriotism and loyalty to America and 
American ways. "They" (the French), he said at 
one time, "are not a moral people; they know not 
what it is." * His firmness, energy, and sagacity 
admirably supplemented the calm, complacent 
temper of the more experienced diplomat. 

The situation in the spring of 1782 was compli- 
cated. The revolt of the American colonies had 
brought in its train a great European war. France, 
seeking revenge for the disasters of twenty years 
before, had made war on England, and had finally 
succeeded in bringing the elusive court of Spain to 
take a like step (1779). Holland also had joined the 
allies. The countries of the north and east were 
joined in the so-called "Armed Neutrality," which 
was unfriendly in spirit to Great Britain.* For some 
time France had been bearing the burden of the 
American war, if, in fact, one could longer call it 
American; she was at the head of a great alliance 
against which England with accustomed bravery 
was fighting sturdily and well. Vergennes, looking 
out upon the field, had more than one fear that 
the combination he had arranged with infinite 
patience and cunning would go to pieces before his 
eyes, and that France would have little for her 
pains except ruined finances and the qualified 



> Wharton, Dip, Corresp. of Am. Rev., V., 849; John Adams, 
Works, III.. 303. 

' See Van Tyne, American Revolution {American Nation, IX.), 
chap. xvii. 



10 CONFEDERATION AND CONSTITUTION [1779 

friendship of independent America. The United 
States was weak, and congressional councils were 
distracted by rival factions. Spain was eager only 
for her own gain, and could not be relied on to be 
either steadfast or considerate. She had entered 
the war, not for any abstract policy of state, but 
to win substantial accessions of territory. ''The 
Spanish," said the French minister Montmorin, 
"like little children, are to be attracted only by 
shining objects."* 

Anxious that America should not leave France in 
the lurch by making an independent treaty with 
England, the French representative in America 
induced Congress to instruct the commissioners for 
peace **to make the most candid and confidential 
communications upon all subjects to the ministers of 
our generous ally, the king of France ; to imdertake 
nothing in the negotiations for peace or truce without 
their knowledge and concurrence; and ultimately 
to govern yourselves by their advice and opinion." ^ 
These w^ere somewhat humiliating directions; but 
of course America was bound in honor not to make 
a separate treaty or to leave France to fight her 
way to peace as best she might. When Spain 
entered the war, by the secret treaty with France 
of April, 1779, it was agreed that one purpose of the 
war should be certain additions to Spanish territory, 
and notably the conquest of Gibraltar. Inasmuch 

' Doniol, Histoire de la Participation, II., 798. 
* Secret Journals of Congress, June 15, 1781. 



1782] END Of THE REVOLUflON 11 

as the purpose of the alliance between America and 
France had been declared to be the independence 
of the United States, it is plain that France and 
Spain, without the knowledge of America, had 
entered into an agreement which might prolong the 
war for purely European purposes entirely foreign 
to American interests or desires. We may doubt, 
therefore, the wisdom and policy of these instructions 
from Congress, although the United States was 
bound by every dictate of honor and good con- 
science not to abandon France on trivial grounds or 
for selfish ends. 

In the spring of 1782, before Jay came to Paris, 
and while Fox was still in the cabinet, informal 
negotiations began between Franklin and Oswald, 
and by this means certain commimications were 
submitted to Shelbume.^ Franklin dwelt on the 
desirability of reconciliation, *'a sweet word," and 
suggested that "reparation" might be voluntarily 
made by England to those who had suffered peculiar- 
ly in the war by the burning of homes and villages. 
"Nothing would have a greater tendency to con- 
ciliate. And much of the future commerce and 
returning intercourse between the two countries 
may depend on the reconciliation." With re- 
freshing courage, as if representing a conquering 
nation, he mildly suggested that England should 
of her own accord give up Canada. Oswald was in 
turn told by Shelburne that reparation would not 
* Fitzmaurice, Shelburne, III., 180. 



12 CONFEDERATION AND CONSTITUTION [17S2 

be heard of, and that he was to **make early and 
strict conditions, not only to secure all debts what- 
ever due to British subjects, but likewise to restore 
the Loyalists to a full enjoyment of their rights and 
privileges." "No independence," he was informed, 
was "to be acknowledged without their being taken 
care of." He was also told that England must hold 
as far as the Penobscot River.* These instructions 
formed the core of the British demands, and we thus 
see at the beginning the subjects that were to be 
discussed at greatest length and that constituted 
the most serious obstacles to final agreement: the 
debts of British merchants; compensation to the 
loyalists ; the northern and eastern boundary. Later 
there was added to these subjects of controversy 
the right of the Americans to make use of the 
Newfoundland fisheries. 

Oswald was at last fully commissioned to treat 
for peace. He was a Scotch merchant, not a 
trained diplomatist. Owing to his possession of 
estates in America and his connections with that 
country, he had been at times consulted by the 
government during the war.^ Like Shelburne he 
was a disciple of Adam Smith, and a man of liberal 
principles. He was of a mild, temperate, and friend- 
ly disposition, but scarcely a match in wits for the 
talented American commissioners with whom he 
came into competition. 

The first difficulty arose concerning the suffi- 
* Fitzmaurice, Shelburne, III., 188, 189. * Ibid., 176. 



1782] END OF THE REVOLUTION 13 

ciency of Oswald's commission. He was authorized 
to treat with the commissioners of ''Colonies or 
plantations," and to conclude with "any person or 
persons whatsoever, a peace or truce with the said 
Colonies or plantations." ^ To Jay, whom sombre 
experiences in Spain had perhaps made unusually 
sensitive, such a commission seemed entirely un- 
suitable, and he flatly refused to treat seriously with 
Oswald on any such basis. The states had long 
since ceased to be colonies or plantations, he as- 
serted, and until England was ready to negotiate 
with the United States he would go no further. 
Franklin, on the other hand, thought that the 
commission was satisfactory enough. 

Vergennes agreed with Franklin, and by advising 
the Americans to proceed with the negotiations, to 
content themselves with the substance and not 
make too much ado about the shadow, he aroused 
Jay's suspicions. Jay believed that Vergennes did 
not desire the independence of America until all 
possible use had been made of her, and that in the 
end American interests would be sacrificed to Spain. 
In this mood he. went so far as to explain to Oswald 
that it was good policy for England to render 
America independent of France, and that a new 
commission recognizing the states as independent 
would have the desired effect.^ Franklin finally 
consented to accept Jay's theory and demand a new 

* Fitzmaurice, Shelburne, III., 249. 

'Jay, Corresp. and Public Papers ^ II., 372, 373, 381. 

VOL. X. — 3. 



14 CONFEDERATION AND CONSTITUTION [1782 

commission before beginning formal negotiations 
for peace. 

At this j tincture there fell into Jay's hands a copy 
of a letter written by M. Marbois, a secretary of the 
French legation in America, to Vergennes. Tbfe 
writer commented on the work of Samuel Adams in 
raising a strong opposition to any treaty which did 
not assure to the states the right to the Newfotmd- 
land fisheries, and the letter disclosed a very critical, 
not to say unfriendly, tone toward the United 
States.* Thus for various reasons Jay became 
convinced that France was willing, if not anxious, 
not only to keep America from obtaining a share 
of the fisheries, but to limit the extension of the 
territory in the west, and that Vergennes was de- 
sirous of propitiating the Spaniards at America^ 
expense. The dearest object of Spain, as Jay well 
knew,^ was to shut ofE the Americans from the 
Girlf of Mexico, and to make it almost a closed sea 
washing the shores of her colonies, which she kept 
in commercial as well as political subjection to herself. 
To this end the states must be kept back from the 
Mississippi and, if possible, confined to the region 
east of the summits of the Appalachian Mountains. 

M. Rayneval, one of Vergennes' s secretaries, ap- 
proached Jay on the subject of the boundaries, 
saying that as the Americans had no inherent right 
to the western country they were overbold in 

* Wharton, Dip. Corresp. of Am. Rev., V., 238-241. 
Ubid.,lY., 146. 



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1782] END OF THE REVOLUTION 15 

claiming it all. A few days after this conference 
he sent to the American commissioner a memoir 
urging a compromise of the conflicting claims of 
Spain and the United States, and marking off a 
proposed limit which would deprive the Americans 
of nearly the whole of the Mississippi Valley.* The 
land south of the Ohio was to be divided into two 
parts, over the eastern portion of which the United 
States was to have some sort of control, inasmuch 
as the Indians inhabiting it were to be under the 
protection of the United States. Even this por- 
tion, however, did not reach to the Mississippi, and 
the navigation of at least the lower part of the 
river was evidently to be denied to the American 
settlers in the west. As to the fate of land north 
of the Ohio, Spain, the memoir conceded, could 
have nothing to say. From Rayneval's com- 
munication Jay concluded that the French court 
** would, at a peace, oppose our extension to the 
Mississippi " and our claim to a free navigation of 
the river; that she would probably support the 
British claim to all the country above the thirty- 
first degree of latitude, and certainly to all the 
country north of the Ohio; and that in case we 
should not agree to divide with Spain in the manner 
proposed, France would aid Spain in obtaining the 
territory she desired and would agree that the 
residue should be left to England.^ 

* Jay, Corresp. and Public Papers, XL, 394-398. See map. 
Uhid.,^^%, 



i6 CONFEDERATION AND CONSTITUTION [1782 

Concerning the right to navigate the Mississippi 
and the title to the western country there had been 
much discussion in Congress; but in the final in- 
structions the commissioners were not ordered to 
insist on title to the west or a right to use the 
river/ The American negotiators knew well, how- 
ever, that Congress desired the land beyond the 
motmtains, and Jay may have had some suspicion 
that Congress had retreated from its earlier position 
because of the efforts of the French representatives 
in America. He was determined, at any rate, that 
France should not sacrifice the interests of the 
states to satisfy the hungry maw of Spain. 

While matters were in this condition Jay learned 
that Rayneval, while pretending to go to the coim- 
try, had secretly departed for London, and he made 
up his mind that the object of the expedition was to 
influence Lord Shelbume against America, to dis- 
cover whether the English would agree to divide the 
fisheries with France to the exclusion of all others, 
and to impress upon the English minister Spain's 
determination "to possess the exclusive navigation 
of the Gulf of Mexico," and to keep the states from 
the Mississippi.^ Promptly and with admirable 
daring, Jay cast aside all scruples concerning his 
instructions. Without consulting Franklin,* not to 
say the ministers ''of otu* generous ally, the king 

* Wharton, Dip. Corresp. of Ant. Rev., IV., 476, 477. 
' Jay, Corresp. and Public Papers, II., 402. 
*Ibid., 408. 



1782] END OF THE REVOLUTION 17 

of France," he prevailed on Benjamin Vaughan, an 
Englishman and a friend of Franklin, to go to 
England and show the ministry that it was "the 
obvious interest of Britain immediately to cut the 
cords" which tied America to France. The com- 
missioners, Jay said, were determined faithfully to 
fulfil all engagements of the treaty with the French 
court, but to be botmd by the French construction 
of their engagements was quite another thing.* 
Vaughan was also urged to make further representa- 
tions for counteracting the machinations of Ray- 
neval, and to impress on Shelburne the policy of* tak- 
ing a decided and manly part respecting America." 

Without needing to use much persuasion, 
Vaughan secured the issue of a new commission, 
authorizing Oswald to treat with representatives 
of the United States of America. Before the end of 
September it was brought {o Oswald,^ and negotia- 
tions could now commence in earnest. Jay was 
unwilling to acquaint Vergennes with the course of 
their proceedings, and Franklin finally, with some 
reluctance, agreed to break his instructions and to go 
on without reference to the wishes of France. There 
is an old story, which may not be true, but which 
is as good as if it were, because it discloses a real 
situation, that one day when Franklin and Jay were 
sitting together FrankUn asked, ''Would you break 
your instructions?" "As I break this pipe," said 
Jay, and he threw the fragments into the fire. 

* Jay, Corresp. and Public Papers, II. , 405 , 407 . ' Ibid. , 447. 



CHAPTER II 

THE TREATY OF PARIS 
(i 782-1 784) 

WE may now stop to consider whether Jay was 
justified in the stand he took, and particularly 
whether his suspicions of French faith were well 
founded. His refusal to accept Oswald's original 
commission and to treat for an acknowledgment 
of independenoe was probably wise. It amounted 
to a declaration that America should be treated 
with as an independent power, and that indepen- 
dence need not be considered in the negotiations as 
the price of peace. Too much can be made of this 
episode, for that America really secured better terms 
simply because her independence was acknowl- 
edged before treating may well be doubted. On the 
other hand, Jay was right, because he was tech- 
nically so, but chiefly because an evidence of 
weakness would have damaged his cause. A digni- 
fied objection to being considered a delegate from 
rebellious colonies rather than a plenipotentiary 
from sovereign states was natural, legitimate, and 
useful. 

The propriety and wisdom of Jay's conduct 
18 



1782J TREATY OF PARIS 19 

toward France constitute a difficult and perplexing 
problem, which can be understood only after a care- 
ful study of niany details. One needs to examine 
all the intricacies of the tangled skein of Revolution- 
ary diplomacy before reaching a conclusion^ and 
then he may find his opinion differing froni the 
judgment of other investigators, for the decision 
rests on circumstantial evidence and depends on 
interpretation of personal conduct. First, it may 
be said that the episode of the Marbois letter, of 
which much has been said by historical writers, is 
of little importance. Suspicions have been thrown 
on its authenticity, but it was probably entirely 
genuine. Though written in a tone decidedly 
captious and unfriendly to America, and in that 
respect not altogether in harmony with other cor- 
respondence between Vergennes and his representa- 
tives, it was in general accord with French policy; 
and it is difficult to explain why Jay should have 
been surprised by it, for before he left America he 
knew very well that France did not think that the 
United States should make the possession of the 
fisheries the absolute condition of a satisfactory 
treaty.' 

Concerning the purpose of Raynevars mission, 
Jay was in a measure mistaken. Rayneval was 
sent to interview Shelburne with intent to discover 
whether certain communications made by Shelburne 

* Wharton, Dip. Corresp. of Am. Rev., V,, 241; Doniol, His- 

toir? de la Participation, IV., 177-183. 



20 CONFEDERATION AND CONSTITUTION [1778 

to De Grasse concerning the basis of peace were to 
be taken seriously and at full value. He was not 
formally instructed to discuss American affairs ; but 
the fact of the matter is, he did discuss them and did 
not hesitate to speak disparagingly of the American 
claims.* No harm was done the American cause, 
however, for the result of his work was probably to 
convince Shelbume that, as he had already suspect- 
ed, the French and Americans were in disagree- 
ment. Thus Rayneval encouraged a natural de- 
sire on the part of the English to win the United 
States from attachment to France, and also inspired 
them to offer favorable terms to the persistent 
commissioners at Paris. It is not to be wondered 
at, nevertheless, that Jay believed that Rayneval' s 
purpose was to injure the American cause and 
assist that of Spain and France. He showed con- 
siderable sagacity as well as independence of judg- 
ment; in light of the evidence before him he was, 
perhaps, justified in acting as he did. 

And yet in his suspicions of France Jay was only 
partly right. If we free our minds from the old- 
fashioned notion that France entered the war and 
poured out her blood and treasure for the gratifica- 
tion of America and from an amiable zeal for 
American principles, and if we see that her chief 
object was to weaken England and to restore in 

* Wharton, Dip. Corresp. of Am. Rev., V., 821 ; Doniol, Histoire 
de la Participation, V., 132; Fitzmaurice, SheWurne, III., 263- 



1782] TREATY OF PARIS 21 

some measure her own prestige, then the action 
of France takes on a different aspect, and we do 
not so lightly charge her ministers with cunning, 
duplicity, and falsehood. Of course, she was not 
wasting her substance to please America, and noth- 
ing but simple self-complacency would have imag- 
ined that such was her object. For some years 
before the summer of 1782 the French had been 
bearing the burden of the war. To accuse France 
of treachery under such circumstances, because she 
was insistent that the United States must not make 
a separate peace, or because she did not wish Con- 
gress or the commissioners to set terms and condi- 
tions that would prolong the war, is to misunder- 
stand the difficulty of her position and to judge of 
her conduct solely from the viewpoint of American 
desire. It is necessary to remember that France 
was the leader in a great European war for which 
she was responsible; and she had good reason for 
contending that America should not be regardless 
of the interests of the other combatants. 

As we have already seen, however, the problem 
had been much complicated by the fact that France 
had finally induced timorous, selfish Spain to join 
in fighting England, and, believing in the need of 
Spanish aid, had entered into an arrangement, 
which was not, to be sure, in direct variance with 
her pledges to America, but which rendered the 
consummation of peace more difficult. Indeed, in 
some slight measure this arrangement made the in- 



22 CONFEDERATION AND CONSTITUTION [1782 

terests of the United States subordinate to those 
of Spain, all of whose feelings and instincts were 
hostile to the purposes of the revolting colonies/ 
The terms of the treaty between France and Spain 
were not known in detail to our commissioners in 
1782, but we can now see that France was embar- 
rassed by the pressing demands of her European 
neighbor, who had entered the war with hesita- 
tion, had not contributed much to its success, and 
wished to come out of it with glory and the lion's 
share of the booty. 

Under the circumstances it was impossible for 
Vergennes to act as if only American interests were 
to be considered. He seems to have been sincerely 
anxious for peace,'* for France was feeling sorely 
the burden of the war. He was, moreover, desirous 
of keeping the friendship of Spain, and, to satisfy her, 
was quite willing that the Americans should be 
hemmed in between the mountains and the sea. 
We must remember that the American claims were, 
to say the least, exceedingly bold, while Spain's 
demands for western land were not devoid of reason. 
There is no evidence that Vergennes had much 
at heart the narrowing of American territory; he 
wished, in order to bring peace and to appease 
Spain, that the claims of our commissioners should 
be kept just as low as possible. He was not at all 
anxious to see America playing a conspicuous r61e 

» Doniol, Histoire de la Participation, III., 574-576. 
»/Wi.. IV., 544. 



1782] TREATY OF PARIS 23 

amoilg the nations, and had little dread of her 
capacity, but he was also honestly set upon securing 
the independence of the states. The lowest limit 
that would stand any chance of being acceptable to 
the negotiators at Paris or to Congress was the one 
he favored.^ There may be some reason for think- 
ing that he wished to hem in the Americans by the 
Appalachians, because he hoped that ultimately 
French, rather than Spanish, power would be es- 
tablished in the west.* But there seems at present 
to be little substantial evidence that any such hope 
or purpose really determined his conduct. 

As to what course the American commissioners 
should have taken, men still differ in opinion. The 
instructions, obtained as they were, need not be 
taken too seriously, and the commissioners did not 
in any way desert France or disregard her peculiar 
interests in their negotiations. Jay suspected more 
than the truth, and it may possibly be true that he 
gained nothing by his breach of instructions and 
by conducting the negotiations without the knowl- 
edge of France. But if all of the negotiations had 
been carried on with the full knowledge of Ver- 
gennes, and hence with the full knowledge of Spain, 
there is little reason to think that so good a treaty 
could have been secured. France certainly would 
not have given frank advice in favor of American 
demands, and probably in the end the commissioners 

* Doniol, Histotre de la Participation^ IV., 617-621. 

• F. J. Turner, in Amer. Hist. Review, X., 249 et seq. 



24 CONFEDERATION AND CONSTITUTION [1782 

would have been obliged to disregard the counsel 
of the ministers of the king. We may conclude 
then by saying that Jay was partly right and partly 
wrong in his suspicions; that France was in a posi- 
tion in which she could not possibly consider only 
the interests of the United States and give advice 
for the benefit of America alone ; that because of the 
breach between the commissioners and the French 
minister the English were induced to treat more 
freely, more rapidly, and more generously than 
would otherwise have been the case; that while 
Vergennes was not altogether frank, and was con- 
sidering the interests of Spain and France, he was 
not deliberately, treacherously, and maliciously 
plotting, as is sometimes charged, to cramp and 
belittle the United States. 

When Oswald's new commission came, late in 
September, 1782, negotiations began in earnest. 
Vergennes was not informed as to the details of 
what was imder discussion, and the business in 
hand moved forward rapidly. Early in October Jay 
submitted to Oswald a scheme of a treaty,^ to 
which the British commissioner gave his consent, 
and it was sent to England in hopes that it would 
be acceptable to the ministry. The boundaries 
were practically the same as those called for by the 
early instructions of Congress:^ the northern line, 
running from the intersection of the forty-fifth 

* Wharton, Dip. Corresp. of Am. Rev., V., 811. 
' Secret Journals of Congress, Kugw^t 14, 1779. 



1782] TREATY OF PARIS 25 

degree of north latitude with the St. Lawrence to 
the south end of Lake Nipissing and thence straight 
to the sources of the Mississippi, included a good 
deal of what is now Canada; the western line was 
the Mississippi. The Americans were assiu-ed the 
right to enjoy the fisheries, but, on the other hand, 
there was no promise on the part of the United 
States that the refugees would be compensated or 
that the laws regarding confiscations would be re- 
pealed, the commissioners declaring that the laws 
for confiscation had been made by the individual 
states and that Congress had no authority to 
stipulate for their repeal.* 

The draught of the proposed treaty was not ac- 
ceptable to the ministry. They knew it would be 
bitterly attacked in. Parliament, if for no other 
reason because it contained no promise of aid to 
the loyalists, who by adhering to the king's cause had 
risked their all, and in many cases had lost their 
all, and thousands of whom had been treated with 
harshness or driven from the country. The Eng- 
lish merchants also to whom debts were owing in 
America would expect assurance that they could 
make collections ; and the boundaries as outlined in 
this preliminary sketch were, Shelburne thought, far 
too generous to America.^ 

Shelburne, therefore, decided to try again, and 
sent Henry Strachey to aid Oswald, and perhaps to 

^ FTa,nk\in, Works (Sparks's ed.), IX., 426. 
' Fitzmaurice, Shelburne, III., 281, 282. 



26 CONFEDERATION AND CONSTITUTION [1782 

strengthen the resisting power of this friendly and 
gracious commissioner. John Adams about the 
same time came to Paris from The Hague and 
entered vigorously into the work. The English 
representatives now insisted upon restoration of 
property to the loyalists, or their indemnification, 
and a stipulation for general amnesty. Strachey 
was not so pliant as Oswald seems to have been. 
He is '' artful and insinuating," wrote Adams. *' He 
pushes and presses every point as far as it can 
possibly go; he is the most eager, earnest, pointed 
spirilb." ^ 

In spite of strong objections and many difficulties 
another preliminary sketch was agreed upon and 
taken to England early in November,^ by which it 
was agreed that British creditors should meet with 
no lawful impediments to recovering the sums 
owing them on debts contracted before 1775. As 
for the loyalists, the American commissioners would 
go no further than a stipulation that Congress 
should recommend to the states so to correct any 
laws they might have passed regarding the con- 
fiscation of lands belonging to British subjects as 
to render the acts consistent with justice and 
equity. Only the tenacity of Adams retained the 
guaranty of the right of citizens of the United 
States to enjoy the fisheries in common with British 
subjects as '* heretofore." The northern arid eastern' 

* John Adams, Works, III., 303. 

' Wharton, Dip. Corresp. of Am. Rev., V., 851, 



1782] TREATY OF PARIS 27 

boundaries were not far different from those appear- 
ing in the earlier draught; the southern boundary- 
was, as before, the thirty -first parallel from the 
Mississippi to the Appalachicola, but a separate 
secret article was agreed upon, wherein it was 
stipulated that if at the conclusion of the war Great 
Britain should retain West Florida, the northern 
boundary of this province should be a line through 
the mouth of the Yazoo ("Yassous") River, which 
is about 32° 25', not far from the present site of 
Vicksburg.* 

The commissioners waited with interest in Paris 
for some announcement as to the reception accorded 
the new articles in London. There was reason 
enough to fear that the refusal to give compensation 
to the Tories might destroy all prospects for im- 
mediate peace. Jay said that England would be 
content with a " tract of land, with a pompous pre- 
amble." ^ But the Americans Were determined that 
nothing favoring the loyalists should be inserted. 
And yet something must be done. "We live in 
critical moments," wrote Adams. ** Parliament is 
to meet, and the King's speech will be delivered on 
the 26th." * Shelburne, indeed, needed to act quickly ; 
he had to choose between an unsatisfactory treaty 
and none at all, and either alternative would be 
troublesome. But as the king could not meet 

^ Wharton, Dip. Corresp. of Am. Rev., V., 851-853. 

'John Adams, Works, III., 325. 

' Wharton, Dip. Corresp. of Ark. Rev., VI., 65. 



28 CONFEDERATION AND CONSTITUTION [1782 

Parliament with good face unless able to annoimce 
either peace or the continuance of the war, the 
houses were prorogued for a few days, and Shelburne 
determined to make another effort for the loyalists 
and possibly for the fisheries. 

When this determination was announced at Paris, 
wearily over the subject the commissioners went 
again. The Americans absolutely refused to yield 
compensation for the Tories and insisted on the 
right to a share in the fisheries. It was finally 
brought home to the attention of the Englishmen 
that they could get no better terms, and a pre- 
liminary treaty was agreed to on November 30, 
1782,* not substantially different from the draught 
which Strachey had taken to London the early part 
of the month. 

In the treaty as finally agreed upon the boundary 
was not the same as in the earlier draughts, and, 
though considered accurate at the time, it in reality 
left much to be determined by later negotiation. 
The northeastern boundary was described as *'a 
line drawn due north from the source of Saint Croix 
River to the Highlands; along the said Highlands 
which divide those rivers that empty themselves 
into the river St. Lawrence, from those which fall 
into the Atlantic Ocean, to the northwesternmost 
head of Connecticut River.'* This seemed clear 
enough, but, in fact, before the lines could be drawn 
it was nfecessary to determine which was the St. 
* Wharton, Dip, Corresp. of Am. Rev., VI., 96-99. 



1782] TREATY OF PARIS 29 

Croix River, which highlands were referred to, 
what were the rivers falHng into the ocean, and 
to which branch of the Connecticut belonged the 
northwestern head of the river. From the Con- 
necticut the line ran along the forty-fifth parallel to 
the St. Lawrence, thence through the Great Lakes 
and connecting waters to the Lake of the Woods. 
From the most northwestern point of the Lake of 
the Woods the line ran due west to the Mississippi — 
an impossible boundary — down the river to latitude 
thirty-one degrees, and thence east, by that parallel 
and by the line which is now the northern boundary 
of Florida, to the ocean. The secret article men- 
tioned before was retained, whereby the United 
States agreed, in case Great Britain at the con- 
clusion of the war should "recover or be put in 
possession of West Florida," to accept as its southern 
boundary from the Mississippi to the Appalachicola 
a line running through the mouth of the Yazoo. 
Heedless of the fact that the mouth of the Missis- 
sippi was in the hands of unhappy Spain, the eighth 
article of the treaty declared that the navigation 
of the river from its source to its mouth should be 
free to Americans and British alike. The grant of 
this privilege of navigation England based on her 
treaty with France of 1763. 

The success of the American negotiators was 
phenomenal; they won practically every contested 
point. **You will notice," wrote Vergennes to 
Rayneval, ''that the EngUsh buy peace rather than 

VOL. X. — 4 



30 CONFEDERATION AND CONSTITUTION [1782 

make it. Their concessions, in fact, as well in the 
matter of the boundaries as in that of the fisheries 
and the loyalists, exceed all that I could have 
thought possible." ^ The peace was received with 
enthusiasm in America, as well it might have been; 
for how the country that had in many ways wearied 
of the war and of strenuous well-doing could have 
had the hardihood to expect so much is difficult to 
see.^ 

Some members of Congress, it is true, were dis- 
posed to criticise the conduct of the commissioners.' 
But such complaints were of little moment, for iti 
reality the course followed by the negotiators 
worked France no injury. The articles of agree- 
ment of 1782 were preHminary only, and it was 
distinctly understood that the final treaty should 
not be signed until France was ready to close the 
war. 

Vergennes wrote in a tone of injured magnanimity 
to Luzerne, who repeated to Congress his master's 
sentiments. But Vergennes could complain of 
naught save the exhibition of discourtesy and lack 
of confidence. His letter to Franklin was a digni- 
fied rebuke: "You are wise and discreet, sir; yoil 
perfectly understand what is due to propriety; yott 
have all your life performed your duties. I pray 



* Circourt, Histoire de V Action Commune, III., 50. 
2 Jay, Corresp. and Public Papers, III., 40. 
^ Madison, Papers (Gilpin's ed.), I., 407; Wharton, Dip. Cor- 
resp. of Am. Rev., VI., 333, 334. 



1783] TREATY OF PARIS 31 

you to consider how you propose to fulfill those 
which are due to the King." An adroit letter, at 
once frank and insinuating, in the best form of ex- 
perienced diplomacy, was sent by Franklin, ac- 
knowledging that the Americans had been guilty of 
neglecting a point of bienseance, and intimating that 
Jie hoped the notion of the Englishmen that they 
had divided the allies would prove unfounded/ So 
little did the French minister feel aggrieved that he 
consented almost immediately after this interchange 
of letters to afford the United States a new proof 
of the friendship of the king by granting a loan of 
six milHon liyres for the year 1783, and this al- 
though France was much oppressed with the ex- 
penses of the war, and although the financial bur- 
dens that were rolling up were beginning to foretell 
the great revolution that awaited her. 

To discuss the question as to which one of the 
commissioners is deserving of chiefest credit would 
be useless; we all must recognize the fact that Jay, 
with admirable boldness, took the weightiest re- 
sponsibility and bore the heaviest burden in the 
anxious days before Adams came from The Hague. 
Adams, whose rare words of praise are like apples of 
gold in pictures of silver, was warm in his enthusiasm 
for Jay's valor: ''Nothing that has happened 
since the beginning of the controversy in 1761 has 
ever struck me more forcibly, or affected me more 
intimately, than that entire coincidence of principles 

^ Wharton, Dip. Corresp. of Am. Rev., yi., 140, 143, 144. 



32 CONFEDERATION AND CONSTITUTION [1782 

and opinions between him [Jay] and me."* But 
until further evidence is produced we are also 
bound to believe that Jay was somewhat too sus- 
picious of France, for if in the end American in- 
dependence had not been secured Vergennes would 
have been discredited in Europe, and there is as 
yet no evidence that he had much at heart the 
limitation of America's territory, even if on the 
whole he was inclined to sympathize with Spain in 
her contention for the west. Franklin, it should be 
noticed, had laid the plans for the negotiation, and 
there is no good reason for thinking that he would 
have easily surrendered any of the American claims. 
Easy-going he was, and possibly too much inclined 
to trust the Frenchmen, who of course had their own 
interests to look after, but he was shrewdness itself, 
and had spent a long life in studying human nature 
and learning its lessons. 

In January, 1783, England concluded preliminary 
articles of peace with France and Spain. Gibraltar, 
the chief object of Spanish desire, was not surren- 
dered to Spain, but Minorca and the Floridas were. 
France, for all her sacrifices, obtained but little. 
She had entered the war hoping to crush forever the 
power of her rival across the channel ; she had acted 
with energy and spent money with profusion. Con- 
firmation of a few petty fishing privileges, the es- 
tablishment of ''full right" to two dreary islands off 
the coast of Newfotindland, abrogation of an article 
* Adams, Wf?r^5, III., 336. 



1784] TREATY OF PARIS 33 

in the treaty of Utrecht stipulating that Dunkirk 
should not be fortified, certain territories in India 
which she was destined soon to lose, and a few other 
concessions from Great Britain, seem slight recom- 
pense for the strenuous efforts of France to regain 
her old prestige by helping the American colonies 
to independence, and by humbling the nation that 
had stripped her of her possessions twenty years 
before/ 

Though it is difficult to see how America could 
have won independence without France, though 
Spanish aid was won only by dangling ** shining ob- 
jects" like Gibraltar temptingly before the eyes of 
the court at Madrid, and though France planned the 
campaigns, furnished troops, and paid money, the 
French king received little for his pains, and within 
ten years after this treaty England was ready to 
fight again, seemingly as vigorous and as self-reliant 
as of yore. If the American Revolution was a pop- 
ular uprising on this side of the water, in Europe it 
was pre-eminently a war conceived in the cabinets 
of kings, and fought out for policies of state that in 
the end proved illusory. 

The definitive treaty of peace,^ concluded on Sep- 
tember 3, 1783, and ratified by the Congress of the 
Confederation in January, 1784, was simply a repe- 
tition of the preliminary articles of November, 1782. 
America was now possessed of a wide territory and 

^ Annual Register, 1783, pp. 322-338. 

' Treaties and Conventions of U. S. (ed. of 1889), 375-379. 



34 CONFEDERATION AND CONSTITUTION [1784 

every apparent opportunity for peace and progress. 
Could England have rested content with her loss and 
treated her former colonies with nobleness and jus- 
tice, could America have forgotten her animosity 
and believed that not all Englishmen were bullies, 
could the spirit which actuated Oswald, Jay, and 
Franklin at Paris have been perpetuated, many of 
the trials of the future might have been avoided. 



CHAPTER III 

THE PROBLEM OF IMPERIAL ORGANIZATION 
(1775-1787) 

THE end of the war did not end America's trials. 
The next few years were crowded with per- 
plexities; men that could think were anxious and 
troubled. Before the people who had broken away 
frorn Britain and had announced their own political 
beliefs could take full advantage of the opportuni- 
ties lying at their door, the wreckage left by the 
war had to be cleared away; they had to find suit- 
able political organization, overcome the disastrous 
influence of civil commotion, look the toil of the 
future fairly in the face, and begin seriously to prac- 
tise the principles of self-government, which many 
were apt to forget were not far different from the 
principles of self-control. 

The Revolution, if correctly understood, was 
much more than a separation from Great Britain ; it 
was more even than the establishment of so-called 
free institutions as over against monarchical institu- 
tions. To understand the task of political and social 
organization, we must remember that the Revolu- 
tion had been a civil war. No notion coujd be 

as 



36 CONFEDERATION AND CONSTITUTION [1777 

more erroneous or lead us into greater difficulties 
in our endeavor to appreciate the trials that ensued 
after the war was over than the notion that the 
Revolution had been merely a contest between 
America and Great Britain, that it was a great pop- 
ular uprising of a united people indignant and 
righteously angered at the prospect of tyranny. 
As a matter of fact, while a majority of the Amer- 
icans sympathized with the so-called patriot cause, 
only a small minority were actively interested and 
ready really to sacrifice their material comfort for 
an ideal. A large number, almost equal to the en- 
thusiastic patriots, were stanch loyalists, willing 
to do service for George III., to fight, if need be, in 
his armies, to give up their property and go into 
exile rather than surrender the name of Englishmen 
or prove traitors to their king. A third large group, 
fond of the good things of this world and not anx- 
ious about the success of either side, had shown a 
readiness to drink British Madeira at Philadelphia 
or New York, or to sell their produce for bright Brit- 
ish guineas, while the American army, hungry and 
cold, ill-clad — if clad at all — were starving and 
shivering at Valley Forge or dying of small-pox at 
Morristown. 

An interesting glimpse of this Revolutionary 
struggle is obtained from Washington's letter to 
Congress,* in which he speaks of Howe's success in 
Pennsylvania (1777). Washington had been moving 

* Washington, Writings (Ford's ed.), VI., 8g. 



1781] PROBLEM OF ORGANIZATION 37 

through a country in which it was difficult for the 
Americans to gain intelligence because the people 
were "to a man disaffected," while forced marches 
and rapid movements of the troops were impossible 
because a great number of the soldiers were without 
shoes. Washington, not Howe, was in the enemy's 
country. It was, therefore, from the distressing in- 
fluences of civil strife that America had to free her- 
self in the days of readjustment after the peace, 
when the troops were withdrawn, the Continental 
army was disbanded, and the people were left to look 
in upon themselves and wonder what manner of folk 
they were. 

The loyalists were many — perhaps nearly, if not 
quite, a third of the population/ Many of them 
were, moreover, or had been when the war began, 
men of substance and of position. On the whole, 
they came from the conservative classes, who dis- 
liked rebellion for itself and because they had some- 
thing to lose. Men that were looking for a chance 
to wipe out their old debts and had hopes of getting 
something ahead in the general overturning were 
not apt to be Tories. The people that were banished 
from Boston were members of the old families of the 
commonwealth.^ Greene reported to Washington 
that two-thirds of the property in New York City 

* Van Tyne, Loyalists, 94-105; Tyler, "The Party of the 
Loyalists in the American Revolution," in Amer. Hist. Review, 
I., 27-29; Flick, Loyalism in New York, 182; Van Tyne, Ameri- 
can Revolution, chap. xiv. 

' Tyler, in Amer. Hist. Review, I., 31. 



38 CONFEDERATION AND CONSTITUTION [1775 

and its suburbs belonged to Tories/ and one is con- 
strained to feel that in the confiscation by whicli 
loyalists' property was taken during the war there 
was a tinge of more than patriotic enthusiasm or 
even of partisan hostility; there was greed fpr the 
spoils of the enemy. 

We must not understand from this that the Tories 
were all educated gentlemen and the Whigs mis- 
creants and ruffians; but if we see aright the dif- 
ficulty of the situation after the peace, we must at 
least appreciate the fact that in the war there 
had been a great social upheaval, that many of the 
wisest, ablest, and most substantial citizens had 
been driven into exile, and that no country could 
afford to lose the services of such men as rnoyed 
away to England or passed over into Nova Scotia QX 
settled in Canada to be the Pilgrim Fathers of the 
Dominion — no country, above all, that was forced 
to establish lasting political institutions and to 
undertake a great constructive task that might 
well have proved too heavy for the most efficient and 
the most creative nation in the world. This ex- 
pulsion of tens of thousands of loyalists w^s well 
likened by a contemporary to the expatriation of 
the Huguenots on the revocation of the Edict of 
Nantes.^ From that expatriation France has npt 
yet recovered. Could America easily get on with- 
out the one hundred thousand men, women, and 

^ Washington, Writings (Sparks's ed.), IV., 86, n. 

2 Grant, Memoirs of an American Lady (ed. of 1846), 283. 



1783] PROBLEM OF ORGANIZATION 39 

children who were killed in the wars, died in prison, 
or stiffered banishment because they had been 
faithful to the cause of King George? Could she 
prosper politically without the help of those dis- 
franchised Tories that survived the trials of the 
war and remained to face the ill-will of their neigh- 
bors? To a country, then, which had known the 
agony of civil strife, which had been confiscating 
the property of its own citizens, which had seen 
thousands of its prosperous people impoverished or 
driven across the seas, came the duty of finding 
stable, trustworthy, and free institutions for a vast 
territory. 

The political task that confronted the people 
when independence from Great Britain was declared 
was in its essence the same that had confronted the 
British ministry ten years before — the task of im- 
perial organization. Britain had been able to find 
no principles that suited the colonists or that in 
the long run suited herself. The learned Mansfield 
or the faithful Grenville could do no more than as- 
sert the sovereignty of Parliament and declare that 
all power rested at Westminster. The Americans 
were hot content with this simple declaration of 
law; they insisted on other rights, on an imperial 
order in which not all legislative power was gathered 
at the centre. When at length independence came, 
when the colonies were states, and especially when 
the war was over, what was America to do ? Could 
the Americans, who had scolded England so roundly 



40 CONFEDERATION AND CONSTITUTION [1765 

and broken away from her control, find imperial 
organization themselves without giving up all they 
had contended for? Could they reconcile local 
liberty with central authority and real unity? The 
work was a momentous one, of great significance to 
mankind, and it must be done, if at all, by a dis- 
tracted country emerging from civil war. 

Though the Americans had been contending, as 
they claimed, for established English principles, the 
war had in part rested on theories of government 
and of society which, if carried to their logical 
conclusion, meant primeval confusion. The ulti- 
mate position of the Americans in their argument 
with England in the years preceding the war had 
been based on "natural rights," on the assertion 
that there are certain inalienable rights which 
no government could take away, rights which had 
been reserved as untransferable when the individual 
entered society and when the social compact was 
formed. The notion that liberty and right existed 
before government was easily changed into the 
notion that government, and indeed all the con- 
ventionalities of society, had grown at the expense 
of liberty and the right of the individual. In Tom 
Paine' s Common Sense, the most popular book of that 
generation, this Revolutionary philosophy was ad- 
mirably set forth. In its pages one could read that 
government is a necessary evil, and that palaces 
of kings are built on the ruins of the bowers of 
paradise. If men believed this, they natttrally be- 




L 



1783] PROBLEM OF ORGANIZATION 41 

lieved that a return to nature would be a return to 
happiness; and if, because of sinful man, govern- 
ment, an evil in itself, was necessary, it should be 
looked on with suspicion and guarded with jealous 
care. Such philosophy was of wide influence in 
that generation and the next. Even a man like 
Jefferson was ready to talk nonsense about fer- 
tilizing the tree of liberty with the blood of tyrants, 
and about the advisability of occasional rebellions, 
which ought not to be too much discouraged.^ In 
the days when such thoughts were current, it was 
difficult to argue for efficient government and to 
point to the necessity of punishment and restraint. 
The men of those days could not quite see that if 
the Revolutionary principles were made complete, 
if the popular institutions were established, if the 
people were to be the real rulers, there could be no 
antithesis between government and people, inas- 
much as the people were the government, the posses- 
sors of the final political authority ; what was called 
government was merely the servant of a power 
superior to itself. To limit this servant and to make 
it weak and ineffective was to limit the people. 
This fact was not comprehended ; it took time for the 
full significance of the democratic idea to come home 
to men. And this was natural in the light of the 
long struggle for liberty; it was natural, if it is 
true that the Revolution was but one of the great 
movements in English history for a freer life and 
* Jefferson, Writings (Ford's ed.), IV., 362. 



42 CONFEDERATION AND CONSTITUTION [1776 

for a freer expression of the individual. How 
could men at once realize that, if the circle was now 
complete, if they were now the government, there 
was no need to struggle against government? **It 
takes time," said Jay, "to make sovereigns of sub- 
jects." ^ But many there were besides who be- 
lieved in individualism pure and simple, the right 
of the individual to do as he chooses. They did not 
care where government rested ; they wished them- 
selves and their neighbors let alone. All these 
influences were making, not for imperial organiza- 
tion, not for law and system, but for personal 
assertion, for confusion that might threaten the 
foundation of all reasonable order. If these in- 
fluences were overcome, it must be because the wise 
and the strong succeeded in winning control. 

During the war, it is true, the states had formed 
new state constitutions,^ and it will not do to under- 
estimate the importance of the fact that these f imda- 
mental l^ws were made, and that the people dis- 
covered and began to make use of the constituent 
convention — this, after all, is the most significant fact 
of the American Revolution. But in a measure the 
theories of the day were a real source of danger even 
to the states themselves, and the time might come 
when the men in the individual states would anx- 
iously turn to national authority for relief. It was, 
moreover, much easier for the people to allow the 

* Jay, Corresp. and Public Papers, III., 211. 
' Van Tyne, American R^olutian, chap. ix. 



1783] PROBLEM OF ORGANIZATION 43 

state governments to wield power than to grant any 
to the nation. The local authority was near at 
hand, aiid in its new dignity was not very different 
from the old colonial administration. The war had 
been begun against a general government; why 
should implicit obedience be paid to the Congress 
of the United States, clamoring for power and for 
taxes as George III. and Lord North had never 
dared to do ? 

So far we have seen several different circum- 
stances that must be taken into consideration in 
interpreting the task of the American people in the 
yeats of national readjustment: the harassing and 
demoralizing experiences of a war which was at 
once a civil war and a revolution; the banishment 
and voluntary emigration of thousands of its most 
intelligent and substantial citizens; the political 
thinking of the time, which the course of the war 
had intensified — thinking that, if allowed to fer- 
ment in shallow-pated citizens, might endanger the 
stability of society itself; and, lastly, the fact that 
the war had been waged to support local goverh- 
metits against a general government. Amid all of 
these difficulties America was imperatively called 
upon to organize its empire, if we may use the word 
to convey the meaning of the vast territory stretch- 
itig from the St. Croix to the St. Mary's and west- 
ward to the Mississippi — an empire inhabited by 
thirteen distinct groups of people in large measure 
ignorant of the lives and thoughts of one another. 



44 CONFEDERATION AND CONSTITUTION [1776 

In solving this problem the United States was 
at once aided and hindered by its geographical 
make-up and its history. Geographically separated 
from Europe by thousands of miles of space and 
many weeks of time, the Americans felt isolated 
from the rest of the world, and must perforce have 
been impressed with the thought of a common 
destiny ; but separated as the states were from one 
another, when the people were thinking of them- 
selves and not of Europe, they must have felt their 
differences more keenly than their similarities. 
South Carolina was so remote from Virginia that we 
might almost think of her as belonging to the West- 
Indian group of colonies rather than to the conti- 
nental. The Declaration of Independence was 
known in Paris almost as soon as in Charleston. 
The hardy Yankee seamen who buffeted the winds 
off stormy Hatteras must have felt far from home 
when they sailed into the harbor of Wilmington or 
Savannah. A Georgian knew little of New York 
or Massachusetts. Life on the plantations of Vir- 
ginia was far different from life in the little 
settlements of New England. When John Adams, 
leaving his fireside in Braintree, went to Philadelphia 
as a delegate in Congress, the letters which he sent 
home were welcomed as tidings from a " far coun- 
try." "Of affairs of Georg[i]a," wrote Madison to 
JefEerson in 1786, "I know as little as of those 
of Kamskatska." * When we add to all this the 

* Madison, Writings (Hunt's ed.), II., 261. 



1783] PROBLEM OF ORGANIZATION 45 

fact that the colonies were established at different 
times and from different motives, and that climate, 
soil, and industrial life varied greatly from Maine to 
Georgia, we are so impressed by the diversity that 
union seems almost beyond the verge of possibility. 
And yet political unity was a necessity ; any form of 
political order not expressing the fact of real inter- 
dependence and essential oneness of purpose was 
insufficient if America was to organize her empire. 
Without modern means of communication, with- 
out railroads or telegraphs, the states were also 
without good highways of any kind. The road 
between Boston and New York was not very bad, 
but in the most favorable weather the traveller 
making the trip must spend four days in a clumsy, 
uncomfortable coach, giving up more time and 
much more comfort than he would now expend 
in passing across the continent.^ The highways of 
Pennsylvania were often almost impassable, and 
travel on them was little less than misery.^ South 
of the Potomac the roads were still worse; there 
even bridges were a luxury. Even on the much- 
travelled route between the north and the south 
the mails were infrequent. Three times a week 
throughout the summer they passed between Port- 
land, Maine, and Siiffolk, Virginia, but from Suf- 



* Brissot de Warville, Travels in America, I., 97; Quincy, Life 
of Josiah Quincy, 37. 

^"Letters of Phineas Bond," in Am. Hist, Assoc, Report, 
1896, p. 522; Pa. Archives, ist series, X., 129. 

VOL. X. — s 



46 CONFEDERATION AND CONSTITUTION [1776 

folk southward only twice a week in the siimmer 
and once a week in winter. Inhabitants of towns 
out of the main course of travel were more isolated 
than are now secluded hamlets in the heart of the 
Rockies. Into the great west beyond the Appala- 
chian range a few courageous men had gone and 
established their homes; but this vast region was 
a wild and almost trackless forest. A man in the 
little village of Louisville was often ignorant for 
months at a time of what was going on at New 
York or Boston, knowing no more of the internal 
affairs of the sea-coast towns than " what our friends 
are about in the other world." ^ 

To such a people, then, thus distracted and thus 
divided, came the problem of imperial organization. 
One fact aided them materially: the states were 
alike in structure; they had the same pohtical in- 
heritance; the fundamental ideas of English liberty 
and law, taking root in congenial soil, had grown 
strong in every section ; men in all the states thought 
in the same terms and used the same phrases. Even 
their Revolutionary philosophy with its notion of 
absolute rights was a product of English history. 
Moreover, events, relentless facts, were showing the 
way to soimd union; there could be na real peace 
and prosperity till political organization was in 
harmony with industrial and social needs. If the 
people were reluctant, union on a proper basis was 
to be established by "grinding necessity." 
* N. Y, Hist. Soc, Collections, 1878, p. 2.33. 



1781] PROBLEM OF ORGANIZATION 47 

The important process of making state constitu- 
tions was pretty well completed four years after 
the Declaration of Independence, but the formation 
of a national system was not so simple. For some 
years after the Declaration the affairs of the Union 
were conducted by a Congress of delegates on whose 
discretion or authority there were no constitutional 
restraints ; hence Congress did, not what was needed 
to be done, but what it was able to do or thought it 
wise to attempt, at times showing energy and in- 
telligence, again sinking into sloth and incompetence. 
During these years America was acting imder an 
unwritten constitution, and, in spite of the inability 
of Congress, establishing precedents of some weight 
and importance. 

On March i, 1781, Maryland, the last of the 
thirteen states, signed by its delegates the Articles 
of Confederation, and henceforward the powers of 
Congress were clearly outlined.^ The first form of 
imperial organization was that of a "perpetual 
Union," a "league of friendship" between states. 
To care for the interests of the Confederation, a 
Congress was provided, to be made up of delegates 
annually chosen in the states. Each delegation was 
entitled to one vote ; Rhode Island had as much in- 
fluence in the affairs of America as Massachusetts 
or Virginia. Congress had authority to decide on 
peace and war, to carry on hostilities, to manage 

^ For the process of forming the Articles of Confederation, 
$ee Van Tyne, American Revolution, chap. xi. 



48 CONFEDERATION AND CONSTITUTION [1781 

all diplomatic matters, to build and equip a navy, 
to borrow money and emit bills of credit, to make 
requisitions on the states for men and money, to 
appoint naval officers and superior military officers, 
to establish and regulate post-offices, to determine 
the alloy and value of coin, and to perform some 
other duties supposed to be of general interest. 
This was a generous allotment of authority, but its 
exercise was carefully guarded, since no vote, except 
to adjourn from day to day, could be carried except 
by a majority of all the states, while the consent of 
nine states was required to carry any measure of 
special importance. Unless nine states agreed. Con- 
gress could not engage in war or enter into treaties 
or alliances, or coin money or borrow money, or make 
appropriations, or appoint a commander-in-chief, or, 
indeed, even determine on the sums of money for 
which it would ask the states. 

The better to secure mutual friendship and inter- 
course, it was especially provided that the free in- 
habitants of each state should be entitled to all the 
privileges and immunities of citizens in the several 
states. Sundry restraints were placed upon the 
states ; they were not to enter into treaties, confed- 
erations or alliances, interfere in foreign affairs, or en- 
gage in war without the consent of Congress, unless 
actually invaded. These and similar prohibitions 
marked with some clearness the line of demarcation 
between the reserved power of the states and the 
authority granted to Congress. Congress was the 



lySi] PROBLEM OF ORGANIZATION 49 

final resort on appeal in all disputes between the 
states, its authority to be exercised by the establish- 
ment of a special court or board of arbitration whose 
decision was decisive of the question at issue. The 
Articles were in many ways dissimilar to the state 
constitutions; in fact, there is no evidence that 
their framers intended to follow the examples of 
the states. There was no effort to establish a gov- 
ernment with distinct branches; all the authority 
granted was in the hands of Congress, which was, 
however, authorized to appoint an executive com' 
mittee to sit when Congress itself was not in session. 

This simple arrangement, a confederation of sov* 
ereign states, performing certain functions through 
a body of delegates, proved in the course of a short 
time so inadequate that it is easy to pass these 
Articles by with an amused smile at their utter un- 
fitness for the work at hand. As a matter of fact, 
they were in many respects models of what articles 
of confederation ought to be, an advance on previous 
instruments of like kind in the world's history. 
Their inadequacy arose from the fact that a mere 
confederac}^ of sovereign states was not adapted to 
the social, political, and industrial needs of the time. 

In one important particular the Articles were of 
profound significance: with remarkable care they 
separated the particular or local powers from those of 
general character ; and let us notice that on the wis- 
dom and the accuracy with which this division is 
made must depend the permanence of any plan of 



5o CONFEDERATION AND CONSTITUTION [1781 

imperial organization. Under no conditions, of 
course, would the states surrender all political au- 
thority to any central government; but by the 
Articles of Confederation they granted nearly every 
power that was really of a general or national char- 
acter. Two powers that the central authority much 
needed were withheld: the power to raise money 
and the power to regulate commerce — the very 
ones about which there had been so much dis- 
cussion before the war. "Let the king ask for 
money," the colonists had said to Parliament, "and 
we will pay it." This plan of imperial organization 
was to prove a very lame one when applied on this 
side of the Atlantic; Congress was to try this plan, 
to call for money, plead for it, implore attention, 
and remain penniless. But few years were needed 
to show the necessity for general control of com- 
merce if the Confederation were to be more than a 
name, or if the states were not to change from rivals 
into open enemies. In spite of all this, as far as the 
mere division of powers was concerned, the Articles 
were not far from perfection, and in any plan for a 
broader and better system this allotment of au- 
thority would be of the utmost service. 

Of course the Congress of the Confederation, made 
up of delegates from states, could not pass effective 
laws or enforce its orders. It could ask for money but 
not compel payment ; it could enter into treaties but 
not enforce their stipulations; it could provide for 
raising of armies but not fill the ranks ; it could bor- 



1781] PROBLEM OF ORGANIZATION 51 

row money but take no proper measures for repay- 
ment ; it could advise and recommend but not com- 
mand. In other words, with some of the outward 
seemings of a government, and with many of its 
responsibilities, it was not a government. 

The Articles, as we have seen, provided for no 
executive department. They did provide for the 
appointment of a member of Congress to preside 
over its sessions ; but in fear of kingly authority, it 
was stipulated that no one person should serve as 
president more than one year in any term of three 
years. They also provided for the appointment of 
civil officers for managing the general affairs of the 
United States under the direction of Congress. And 
yet the course of the war had already proved how 
unfit for general administrative duties were the 
whole body of delegates or committees of members,* 
and as a result a movement for the establishment 
of executive departments began even before the Ar- 
ticles went into effect. 

The office of postmaster-general, an inheritance 
from the colonial days, existed from the beginning 
of the war. In the early part of 1781 the offices 
of secretary for foreign affairs, superintendent of 
finance, secretary at war, and secretary of marine 
were created.^ To the second position Robert Morris, 



* Guggenheimer, " The Development of the Executive Depart- 
ments, 1775 -1 789, "in Jameson, Essays in the Const, Hist, of the 
U.S. 

' Journals of Congress, Jannary 10 and February 7, 1781. 



52 CONFEDERATION AND CONSTITUTION [1782 

of Pennsylvania, whose knowledge of business and 
finance had already been of great service to the 
country, was appointed. After considerable delay, 
caused by the customary factional controversies be- 
tween the cliques of Congress, General Benjamin 
Lincoln was made secretary at war. He did not 
take the office until January, 1782. Nothing of con- 
sequence was done with the department of marine, 
probably because of the old difficulty of selecting 
anybody that would suit the wrangling factions, 
and the whole department was turned over to the 
superintendent of finance, who already had more 
than any one could do in managing the distracted 
finances of the Confederation. Robert R. Living- 
ston, of New York, was made foreign secretary, 
but retained his position only till June, 1783. He 
was succeeded the next year by John Jay, who 
showed skill in handling the intricate diplomatic 
questions of the time, and perhaps even more wis- 
dom in impressing on Congress the importance of 
his position. By insisting on the dignity of his 
office and by making use of its privileges, he 
brought it into prominence and helped to give it 
a real value and significance.* Inadequate as the 
Articles were, constitutional organs were gradually 
growing. Administrative failures and experiments 
were showing the way to a more effective and sat- 
isfactory system. 

* Jameson, Essays in the Const. Hist, of the U 5., 161-105, 



CHAPTER IV 

POVERTY AND PERIL 
(1781-1783) 

THE adoption of the Articles gave no assistance 
to Congress in securing money. It had man- 
aged to hobble along in the past, now begging 
alms of France, now ordering the printer to issue 
more paper, again obtaining some assistance by 
requisitions from the states. But if the Confedera- 
tion was to maintain even the semblance of credit 
abroad or of dignity at home, it must have money. 
In February, 1781, even before the Articles had 
been adopted by Maryland, the states were asked 
to vest in Congress the power to levy a five-per-cent. 
import duty ; the income thus arising was to be used 
for paying the debts and interest on the debts con- 
tracted or that might be contracted on the faith 
of the United States for supporting the war.* To 
this request most of the states gave their consent 
promptly, but Rhode Island, on whose acquiescence 
much depended, after some hesitation refused to 
allow such an encroachment on her cherished 
liberties. The impost, she declared, would bear 

^Journals of Congress, February 3, 1781. 

53 



54 CONFEDERATION AND CONSTITUTION [1781 

hardest on the commercial states; officers unknown 
to the free law of the state would be entitled to come 
within her limits ; and, lastly, to grant to the Con- 
gress a power to collect money, for the expenditure 
of which it need render no accoimt to the states, 
would render that body independent and endanger 
the liberties of the United States/ Such reasoning 
as this manifested the virile feeling of local liberty 
which underlay the Revolution, and was a good 
example of how well the states had learned the 
lesson of opposition to taxation. Though the war 
was not yet over, Rhode Island feared that Congress 
might attack her liberties! Within a short time 
Virginia, which had at first granted Congress the 
desired authority, repealed her act, for fear that the 
sovereignty of the state would be injured and the 
liberties of the state put in jeopardy.^ 

Men like Richard Henry Lee, of Virginia, were 
now strongly opposing the growth of Congressional 
power. To inspire jealousy in the states was a 
simple and safe route to popularity; an orator or 
politician could so easily enlarge upon the dearest 
liberties of the people, speak of the bloodshed and 
ideals of the war, and pose as the defender of free- 
dom against the machinations of government. 
There was already a real controversy between local 
and continental politics,^ which was to last long 

* Staples, R. I. in the Cont. Cong., 400. 

2 Hening, Stattites, X., 409, 451, 

^ Hamilton, Works (Hamilton's ed.), I., 3$6. 



1781] FINANCES' 55 

after Lee and the fearsome Rhode-Islanders were 
buried. The failure to get the states to agree to give 
Congress the power to raise money was discouraging 
in the extreme ; but there was a body of intelligent, 
large-minded men in the country who would not be 
beaten, and they determined to persist rather than 
give their country over to ignominy/ 

To overestimate the need of money would be 
difficult; money was needed for everything: to pay 
the troops, to pay the civil servants, to pay the 
interest on the public debt, to pay the anxious and 
needy creditors. "Imagine," wrote Morris, ''the 
situation of a man who is to direct the finances of a 
country almost without revenue (for such you will 
perceive this to be) surrounded by creditors whose 
distresses, while they increase their clamors, render 
it more difficult to appease them ; an army ready to 
disband or mutiny; a government whose sole au- 
thority consists in the power of framing recom- 
mendations." ^ 

To float more paper money was no longer feasible, 
for the past issues had depreciated so rapidly that 
even to keep track of their vanishing value was a 
difficult intellectual task. It is not easy to say 
when this money had ceased to circulate commonly 
or how much it was worth at a given time. Jeffer- 
son says that by the end of 1781 $1000 of Con- 
tinental scrip was worth about one dollar in 

* Madison, Papers (Gilpin's ed.), I., 239, 

' Wharton, Dip. Corresp. of Am. Rev., VI., 203. 



56 CONFEDERATION AND CONSTITUTION [1781 

specie/ Certainly when the Congress of the Con- 
federation was asking for funds the old paper was 
valueless ; an enterprising barber used some of it to 
paper his shop ; ^ a crowd of men and boys, parading 
the streets of Philadelphia one day, used Continental 
bills for cockades in their hats and were accom- 
panied by an unhappy dog which had been covered 
with tar and decorated from head to tail with 
''Congress" paper dollars.^ Evidently to turn out 
more money of this kind might add to the amuse- 
ment of the populace, but would little avail the 
superintendent of finance. 

To borrow money had never been easy, and it 
was now a matter of difficulty. France had been 
generous in her loans and gifts, but the war bore 
heavily on her income and her patience. Even after 
the signing of the preliminary articles of peace 
Vergennes had consented to grant aid, but he could 
not help remarking that when his majesty had done 
so much to help America in her time of "moral 
infancy," she ought now in her maturity to support 
herself."* France could not go on lending money 
forever ; but what hope was there that the Americans 
would realize that fact, stop their recrimination, and 
pay their debts? Men that ought to have known 
better spent their time, not in talking for honesty, 



^Jefferson, Writings (Ford's ed.), IV., 154. 

2 Breck, Historical Sketch of Continental Paper Money, 15. 

^ Moore, Diary of Am. Rev., May 7, 1781. 

* Sparks, Dip. Corresp. of Rev., XL, 172. 



1783] FINANCES 57 

but in maligning Morris, charging the troubles 
upon him, as if he could make money or ruin 
American credit.^ To rely on France and Holland 
ought to have been humiliating ; but there were many 
Americans who were quite willing that France 
should bear the burden, though it was by no means 
a light one. Taxation in America had become irk- 
some in the extreme. Morris pleaded and planned 
and labored with the states to little purpose; to 
talk to them, he said, was like preaching to the dead. 
By January, 1783, the finances of the country 
were in a deplorable condition. Morris informed a 
committee of Congress, appointed to confer with 
him in secret, that his foreign account was already 
overdrawn three and a half million livres, and that 
further draughts were indispensable ''to prevent 
a stop to the public service." In desperation he 
proposed to draw again, relying on the friendship of 
France and the hope of proceeds from a loan in 
Holland.^ This was a bold game — to draw on funds 
that did not exist, to rely on the friendship of a 
nation already overloaded with its own burdens. 
But, bold as it was, there was nothing else to be 
done, and Congress decided to try it. This res- 
olution, marking as it does the depth of want and 
the height of financial audacity, deserves to be 
quoted in full: "Resolved unanimously, That the 
superintendent of finance be and he is hereby au- 

^ Sumner, Financier and Finances of Am. Rev., II., 97. 
* Madison, Papers (Gilpin's ed.), I., 251. 



58 CONFEDERATION AND CONSTITUTION [1783 

thorized, to draw bills of exchange, from time to 
time, according to his discretion upon the credit 
of the loans which the ministers of the United 
States have been instructed to procure in Europe, 
for such sums, not exceeding the amount of the 
money directed to be borrowed, as the publick service 
may require." ^ 

Soon after this Morris determined to resign, and 
sent to Congress a strong letter: "To increase our 
debts while the prospect of paying them diminishes, 
does not consist with my ideas of integrity. I must, 
therefore, quit a situation which becomes utterly in- 
supportable. ... I should be unworthy of the con- 
fidence reposed in me by my fellow citizens if I did 
not explicitly declare that I will never be the min- 
ister of injustice." ^ He offered to remain, however, 
a short time, in hopes of improvement, and, indeed, 
he was prevailed on to retain the position till No- 
vember of the next year.' In a letter to Washing- 
ton, written February 27, 1783, he said that Congress 
wished to do justice, but the members were ''afraid 
of offending their States." * That was the root of 
the difficulty, and conditit)ns were not likely to im- 
prove. Morris tried to impress on Congress the 
wholesome conviction that there was no more hope 
of European aid. ''Whatever may be the ability 

* Secret Journals of Congress, I., 253, January 10, 1783. 
'Wharton, Dip. Corresp. of Am. Rev., VI., 229. 

' Sumner, Financier and Finances of Am. Rev., II., 95 et seq.; 
Oberholtzer, Robert Morris, 200, 209. 

* Wharton, Dip. Corresp. of Am, Rev., VI., 266, 267. 



1783] FINANCES 59 

of nations or individuals," he said, ''we can have no 
right to hope, much less to expect the aid of others, 
while we show so much unwillingness to help our- 
selves. It can no longer be a doubt to Congress, 
that our public credit is gone.''^ He estimated the 
public debt, not including the cartloads of Conti- 
nental paper or the ''arrearages of half pay" due 
the army officers, or various other debts classed as 
"unliquidated," "being the moneys due to the sev- 
eral States and to individuals in the several States," 
at over $35,327,000.^ 

Throughout the winter of 1 782-1 783 the condi- 
tions in the country were full of danger. It will be 
remembered that there was no assurance that the 
war would not be renewed, and it was necessary still 
to maintain the army. The main body of the troops 
was gathered at Newburg on the Hudson. The 
soldiers were better fed and clothed than they had 
been in the past,^ but spending the winter in "dreary 
and rugged hills in idleness, wearily watching the 
British in New York, was not a pleasing occupation. 
The patience of the soldiers had been indeed mar- 
vellous; but now that peace was at hand they 
were growing weary of want and penury. The 
officers had been promised half -pay for life,^ but 
nothing had been done to carry out the pledge, and 



* Sparks, Dip. Corresp. of Rev., XII., 342. 
''Wharton, Dip. Corresp. of Am. Rev., VI., 282, 
^ Washington, Writings (Ford's ed.), X. 153. 

* Journals of Congress, October 21, 1780. 



6o CONFEDERATION AND CONSTITUTION [1782 

the common soldiers lacked even the support of 
generous but unfulfilled promises. In behalf of 
themselves and of the soldiers of the army, the offi- 
cers at Newburg drew up an address (December, 
1782) and sent it by delegates to Congress. "We 
have borne," they said, "all that men can bear — 
our property is expended — our private resources are 
at an end, and our friends are wearied out and dis- 
gusted with our incessant applications." The tone 
was menacing because it declared a real and im- 
minent danger, but it was respectful and noble. 
Congress was told plainly that further experiment 
on the patience of the soldiers would be perilous.* 
Strong and incisive as were the letters of Morris 
and the other officials, they give little notion of how 
trying and menacing those days were. It is plain 
that thoughtful men were weighed down with fore- 
bodings. Some that knew the situation thought 
that the army had already secretly determined not 
to lay down its arms until its reasonable demands 
were satisfied.^ Hamilton believed that Washing- 
ton was daily growing unpopular from his known 
dislike to unlawful measures, and that leading char- 
acters were doing what they could to undermine 
him. The truth seems to be that Hamilton^ him- 
self, and others generally patriotic, were not alto- 
gether sorry to see the army restless. Perhaps, they 

* Journals of Congress, VIII., 225-228, April 29, 1783. 
2 Madison, Papers (Gilpin's ed.), I., 350. 
^Hamilton, Works (Hamilton's ed.), I., 346-348. 



1783] FINANCES 61 

thought, this might bring Congress to energetic ac- 
tion and the states to their senses if nothing else 
would. Hamilton wrote a patronizing letter to 
Washington, telling him that the "claims of the 
army, urged with moderation, but with firmness, 
may operate on those weak minds which are influ- 
enced by their apprehensions more than by their 
judgments, so as to produce a concurrence in the 
measures which the exigencies of affairs demand." 
He hoped that Washington's influence would keep 
"a complaining and suffering army within the 
bounds of moderation." * 

A bolder and more dangerous tone was taken by 
Gouverneur Morris, a young man of immense en- 
ergy, enthusiasm, and self-confidence, then acting 
as assistant to Robert Morris; he looked at the 
danger of an army uprising almost with hope. 
"The army," he wrote to Jay, "have swords in 
their hands.. You know enough of the history of 
mankind to know much more than I have said, and 
possibly much more than they themselves yet think 
of. I will add, however, that I am glad to see things 
in their present train. Depend on it, good will arise 
from the situation to which we are hastening . . . 
although I think it probable, that much of convul- 
sion will ensue, yet it must terminate in giving to 
government that power, without which government 
is but a name." ^ 

* Hamilton, Works (Hamilton's ed.), I., 328. 
' Sparks, Gouverneur Morris, I., 249. 

VOL. X. — 6 



62 CONFEDERATION AND CONSTITUTION [1783 

If the army were disbanded without steps being 
taken to pay them, and if the soldiers were sent home 
to demand pay of the individual states, they would 
not be likely to retain any particular affection for 
Congress, under whose direction they had fought 
and from whom they vainly sought for well-earned 
wages. The dispersion of the army would mean 
the dissolution of a natural centre of general pa- 
triotism and affection. Morris, and probably Ham- 
ilton also, was anxious, therefore, that the army 
should not become thirteen armies. Morris had the 
temerity to write to Greene, who was then in the 
south, and also to Knox,^ at Newburg, intimating 
that the army must stand together and not be di- 
vided. " If the army," he said to Greene, "in com- 
mon with all other public creditors, insist on the 
grant of general permanent funds for liquidating 
all the public debts, there can be little doubt that 
such revenues will be obtained." Greene was as 
patriotic as anybody, but he saw the peril clearly. 
"When soldiers advance without authority, who 
can halt them? We have many Clodiuses and 
Catilines in America, who may give a different 
direction to this business, than either you or I 
expect." ^ 

This correspondence does not mean that Hamil- 
ton and ]\Iorris were bent on raising an insurrection ; 
they wished to consolidate the public debts and to 

^ Hatch, Administration of Am. Rev. Army, 163, 164. 
^ Spavhs, Go uverneiir Morris, L, 250-252. 



1783] FINANCES 63 

have it clearly understood that the Union, not the 
states, was responsible for payment, If this were 
accomplished, a firm and durable bond of union 
would be created. Probably Morris v/ished the 
army to present requests for pay in such form that 
they would have the effect of threats ; it may be that 
he was willing to see even more dangerous steps 
taken/ Whatever the decided intention of Morris 
and those that thought with him, in discussing the 
intervention of the soldiers they were playing with 
fire. And yet the army, although full of com- 
bustible material, was patriotic and right-minded. 
"The army generally have always reprobated being 
thirteen armies," wrote Knox. ''Their ardent de- 
sires have been, to be one continental body, looking 
up to one sovereign." *' It is a favorite toast in the. 
army, 'a hoop to the barrel,' or, 'cement to the 
union.' ... As the present constitution is so de- 
fective, why do not you great men call the people 
together, and tell them so. That is, to have a con- 
vention of the States to form a better constitution ?" ^ 
While Congress was lamenting and discussing, the 
situation at Newburg was growing more serious. 
At no time during the Revolution was the Amer- 
ican cause in a more desperate situation than in the 
early part of 1783. On March 10, 1783, an anony- 
mous paper was circulated suggesting a meeting of 
the officers of the army for the following day, to 

* Sparks, Gouverneur Morris, I., 250-252. 

* Ibid., 256; Brooks, Henry Knox, 169, 170. 



64 CONFEDERATION AND CONSTITUTION [1783 

consider their grievances and to take steps to bring 
an end to their sufferings. It was written with very 
unusual skill and in language calculated to excite 
the anger and awaken still further the resentment 
of the soldiers, who with much justice felt that 
they had sacrificed their comfort and were now 
treated with scorn and contumely. "Can you then 
consent to be the only sufferers by this revolution, 
and retiring from the field, grow old in poverty, 
wretchedness, and contempt? Can you consent to 
wade through the vile mire of dependency, and owe 
the miserable remnant of that life to charity, which 
has hitherto been spent in honour! — If you can — go 
— and carry with you, the jest of tories and the scorn 
of whigs — the ridicule, and what is worse, the pity 
of the world. Go, starve, and be forgotten ! But if 
your spirit should revolt at this; if you have sense 
enough to discover, and spirit enough to oppose 
tyranny under whatever garb it may asstmie; 
whether it be the plain coat of republicanism, or the 
splendid robe of royalty, if you have yet learned 
to discriminate between a people and a cause, be- 
tween men and principles — awake; attend you to 
your situation and redress yourselves. If the pres- 
ent moment be lost, every future eft'ort is in vain; 
and your threats then, will be as empty as your in- 
treaties now." * 



^Journals of Congress, April 29, 1783; Washington, Writings 
(Sparks's ed.), VIII., 555 - 558; Hatch, Administration of Am, 
Rev. Army, 197-199. 



1783] FINANCES 65 

No better, no more vehement and virile English 
was written by the generation that produced Burke 
and Junius, and one is tempted to forget the offence 
in admiring the capacity of the offender. The paper 
seems to have been written by John Armstrong,* 
aide-de-camp to General Gates; but though the 
hands were the hands of Esau, the cunning and the 
force were probably supplied by more conspicuous 
men. If the pompous Gates was not the chief 
conspirator, he was at least the figurehead. 

Washington discovered that the address had been 
circulated and at once appreciated the danger. 
General orders wkive issued calling for a meeting at a 
later day, in hopes that in the mean time the passion 
excited by the inflammatory address might have 
somewhat subsided. The senior officer in rank, 
who could, of course, be none other than the re- 
doubtable Gates himself, was called on to preside 
at the meeting. At the appointed hour Washington 
appeared. The scene is one of the most dramatic 
in our history. The commander was in fear lest 
the passions of the army, inflamed by insidious 
suggestions and stimulated by real injustice, should 
lead them to turn upon the government or seek 
to compel the states to pay them their dues; civil 
war of the most odious and distressful kind might 
well ensue. As he took his place at the desk he 
drew "his written address from his coat pocket, and 

* Hatch, Administration of Am. Rev. Army, 161; U. S. Maga- 
zine and Lit, and Polit, Repository, January, 1823, 37-41. 



66 CONFEDERATION AND CONSTITUTION [17S3 

his spectacles, with his other hand, from his waist- 
coat pocket, and then addressed the officers in the 
following manner : * Gentlemen, you will permit me 
to put on my spectacles, for I have not only grown 
gray, but almost blind, in the service of my country/ 
This little address, with the mode and manner of de- 
livering it, drew tears from [many] of the officers." * 
The paper was a manly, eloquent, telling appeal to 
the patriotism, judgment, and patient generosity of 
the officers ; it was a stinging rebuke for the cowardly 
conspirators who were plotting to disgrace the army 
and ruin the country. "And let me conjure you," 
he said at length, "in the name of our common 
country, as you value your own sacred honor, as you 
respect the rights of humanity, and as you regard 
the military and national character of America, to 
express your utmost horror and detestation of the 
man, who wishes, under any specious pretences, to 
overturn the liberties of our country, and who 
wickedly attempts to open the flood gates of civil 
discord, and deluge our rising empire in blood." ^ 
Upon the conclusion of the address the whole as- 
sembly was in tears. ^ Washington withdrew and 
resolutions were then adopted expressing unshaken 
confidence in the justice of Congress and the country, 
declaring that the officers of the American army 



* Cobb, in Washington, Writings (Ford's ed.), X., 170; see 
also Pickering, Pickering, I., 431. 

* Washington, Writings (Ford's ed.)^X., 173, 174. 
' Lossing, Schuyler, II., 427, n. 



I 



1783] FINANCES 67 

received with abhorrence and rejected with disdain 
the infamous proposals of the anonymous circular, 
and respectfully requesting Washington to urge upon 
Congress the prompt attention to their claims. And 
thus, *' that body of officers, in a moment, damned 
with infamy two publications, which, during the 
four preceding days, most of them had read with 
admiration, and talked of with rapture." ^ 

Without more substantial assets than good in- 
tentions Congress found itself in an embarrassing 
situation. While the army was clamoring for wages, 
the opposition to giving the officers half -pay for life 
reached in some portions of the land incredible 
height, causing in New England, Madison said, ** al- 
most a general anarchy." In lieu of this method 
of payment, therefore. Congress determined to offer 
full pay for five years,^ and ere long the soldiers 
were given new promises and steps were taken to 
disband the army. But the fear of the soldiery, 
which aroused the sturdy patriots who had bided 
safe at home durmg the war, did not die out with 
the disappearance of the army; the Society of the 
Cincinnati, an order formed to perpetuate the mem- 
ories of the Revolution and to preserve the friend- 
ships *' formed under the pressure of common danger, 
and in numerous instances cemented by the blood 
of the parties, ' ' ^ awakened the dread of many gloomy- 

* Letter of March 16, 1783, in Pickering, Pickering, I., 440. 

* Journals of Congress, March 22, 1783. 
'Brooks, Henry Knox, 175. 



68 CONFEDERATION AND CONSTITUTION [1783 

minded citizens, who shuddered at the spectre of an 
hereditary order. 

The veterans who had ** borne the heat and burden 
of the war" went home in good order, "without a 
settlement of their accounts, or a farthing of money 
in their pockets." But there was mutiny among 
the Pennsylvania troops who were stationed at 
Lancaster. Some eighty of these "soldiers of a 
day" ^ marched upon Philadelphia, and, though not 
directly threatening Congress, placed that body in a 
humiliating position. Just how perilous the situa- 
tion was it is now difficult to say, but certainly 
while the authorities in the city were timidly nego- 
tiating for days with the band of mutineers, who had 
found their unerring way to the wine-bottles and 
the ale-casks of hospitable Philadelphia, the plight 
of Congress was unenviable and disagreeable. Feel- 
ing that its dignity was injured, and not unwilling 
to rebuke the Pennsylvania authorities, it passed 
over the river to Princeton,^ and there for a time con- 
tinued its helpless process of recommendation and, 
appeal. The event, though not particularly serious 
in its consequences, was a dramatic representation 
of the helplessness of the Congress, whose represent- 
atives abroad were asking for favors and expecting 
to be treated as the representatives of a great sov- 
ereign nation. 

Though the war was over, the year 1783 was full 

* Washington, Writings (Ford's ed.), X., 272. 
^Journals of Congress, June ai and 30, 1783. 



1783I FINANCES 69 

of discouragement ; notwithstanding the urgent calls 
for money, the states did not respond. Morris sent 
out to the governors a letter of appeal ; up to June 
13 his payments had exceeded his receipts by more 
than $1,000,000. '*How, indeed, could it be other- 
wise," he asked, '' when all the taxes brought into the 
treasury since 1781 did not amount to seven hundred 
and fifty thousand dollars?"* For the year 1782 
Congress asked for $8,000,000, and for the year 1783 
it asked for $2,000,000; but by the end of the latter 
year less than $1,500,000 had been paid in. A com- 
mittee which was appointed to consider the matter 
spoke of the distress and poverty of the people 
"just relieved from the ravages of predatory ar- 
mies, returning from an attendance on camps, to 
the culture of their fields — beginning to sow, but 
not yet having reaped." * 

The fact is, however, that the people were not in 
destitution. There is abundance of contemporary 
evidence to show that at the end of the Revolution 
the people were living with more ease and circum- 
stance than before the war. *'The people," wrote 
Morris to Franklin, ''are undoubtedly able to pay, 
but they have easily persuaded themselves into a 
conviction of their own inability, and in a Govern- 
ment like ours the belief creates the thing." * The 
trouble was not poverty, but commercial confusion, 

• Wharton, Dip. Corresp. of Am. Rev., VI., 6ii. 

• Journals of Congress, report of April 5, 1784. 

• "\Vhcvrton, Dip. Corresp, of Am. Rev., V., 774. 



70 CONFEDERATION AND CONSTITUTION [1783 

vicious politics, and a native disinclination to pay 
taxes. ** The necessity of the present application for 
money," Morris said in 1782, and his remark held 
true for the next five years, '' arises from the neces- 
sity of drawing by degrees the bands of authority 
together, establishing the power of Government over 
a people impatient of control, and confirming the 
Federal Union of the several States by correcting 
defects in the general Constitution." ^ 

On the disbanding of the army Washington ad- 
dressed a long letter to the states, in which he frankly 
spoke of the condition of the country and the need 
of respectable government. ''This is the favorable 
moment to give such a tone to our federal govern- 
ment, as w^ill enable it to answer the ends of its in- 
stitution, or this may be the ill-fated moment for 
relaxing the powers of the Union, annihilating the 
cement of the confederation, and exposing us to 
become the sport of European politics, w^hich may 
play one State against another, to prevent their grow- 
ing importance, and to serve their own interested 
purposes." ^ The letter was courteously received 
by the states, and it may have had some influence 
for a time. Things were to grow worse, however, be- 
fore they grew better. It was already evident that the 
Confederation was a failure, though efforts to amend 
the Articles gave no prospect of success ; and Congress 
grew steadily more helpless as the months went by. 

* Wharton, Dip. Corresp. of Am. Rev., V., 774. 

* Washington, Writings (Ford's ed.), X., 254-265. 



CHAPTER V 

COMMERCIAL AND FINANCIAL CONDITIONS 
(1783-1786) 

MORRIS, as we have seen, declared in 1782 
that the people were quite able to pay taxes, 
but had persuaded themselves of their poverty. All 
through the critical years after the peace this outcry 
against taxes and this lament over poverty contin- 
ued, and yet there seems to have been little excuse 
for it. Some tribulation there was, but that the 
country was forlorn, destitute, and poverty-stricken 
is far from the truth. ^ 

When the Revolution began it brought at the 
outset a necessity for industrial and chiefly for com- 
mercial readjustment. The trade of New Eng- 
land was, of course, badly deranged. Men were 
thrown out of employment and property was de- 
stroyed. The New England merchants and sailors, 
however, did not stand about in idleness waiting 
for the skies to clear. Some of those whose living 
had been made from the sea moved off into the 
forest to begin life anew on the frontier ; the capital 

I* Chastellux, Travels in No. Am., I., 47, H-, 255; Jay, Cor- 
resp. and Public Papers, III., 223. 



72 CONFEDERATION AND CONSTITUTION [1776 

and labor of the people * ' flowed back from the coasts 
towards the interior of the country, which has prof- 
ited rapidly by the reflux. " * But the fishermen and 
sailors were not altogether driven from the sea, for 
hostilities had scarcely commenced when it was seen 
that war had its chances for gain no less than peace. 
Privateering was an exciting and lucrative calling, 
full of interest for the seaman and of fascination for 
the vessel-owner. Fast-sailing ships were fitted out 
in the New England ports, and the Yankee skippers 
soon showed aptitude for the new trade. In the 
year 1776, it is said, three hundred and forty- two 
English merchantmen were captured by American 
privateers; in the course of the war Boston alone 
commissioned three hundred and sixty-five vessels,' 
and to Salem came as many as four htmdred and 
forty-five prizes. Thus many of the New England 
seamen and vessel-owners found new, interesting, 
and lucrative employment which brought money 
and supplies into the country. An illustrative 
experience is that of Elias Hasket Derby, who at 
the outbreak of hostilities owned a small fleet 
with which he had been carrying on a profitable 
trade. Seeing his business broken up and ruin 
staring him in the face, he did not spend much time 
in repining, but fitted out his ships as privateers. 
The end of the war found him rich and prosperous.' 

* Chastellux, Travels in No. Am., II., 237, 250. 
' Winsor, Memorial Hist, of Boston, III., 118, 
' Weeden, Econ. and Soc. Hist, of New Eng., II., 776-778. 



b 



1785] COMMERCE 73 

But after the war was over what were the pri- 
vateersmen to do? How were the owners to use 
their ships or employ their capital? Evidently it 
was necessary to pause and take breath, and there 
was doubtless a short time when the trade of New 
England was dull if not stagnant. The whale- 
fisheries were ruined by the war, and it would take 
years to build them up to their old place; the cod- 
fisheries, too, were in bad condition.* The whole 
situation was now altered, for the tradesmen could 
not at once fall back into the normal methods of 
peace, and, moreover, the conditions prevailing be- 
fore the war no longer existed. England was no 
longer the guardian of American commerce ; her old 
acts of navigation and her old commercial policy, 
under which, however loud the complaint, Amer- 
ican trade had in one manner or another grown 
tremendously, were now the acts and the policy of a 
rival nation. 

In former years the New-Englanders had carried 
rum and some other commodities to the British 
possessions at the north, but by an act passed in 
1784 the commerce with Newfoundland was al- 
most entirely prohibited.^ They had also sent large 
quantities of oil to London, had sold their ships, 
built of New England lumber, to pay the debts 
of their merchants, and had carried on a trade with 
the West Indies. Soon after the war the king 

* Letters of Higginson, in Am. Hist. Assoc, Report, 1896, I., 
733, 739. ' 25 George III., chap. i. 



74 CONFEDERATION AND CONSTITUTION [1783 

was authorized by Parliament to issue orders for 
the regulation of the American trade; and at dif- 
ferent times orders in council were issued, which 
were on the whole fairly liberal and did not by any 
means apply the old navigation laws in their full 
vigor. The trade in American ships with the 
British West Indies was, however, practically pro- 
hibited, and England, desirous of encouraging her 
own whale-fishery, did not permit the importation 
of American oil.^ As a result of these regulations 
the American shipping interests suffered much. 

The Americans, with all their adaptability, insisted 
on following, when possible, the old lines of trade, 
and especially the old direct trade with England,^ 
just as they had done before the war in accordance 
with the navigation laws about which there had been 
so much complaint. They insisted on buying in 
British markets, and they did not properly develop 
their trade with the other countries of Europe. 
But even the direct trade with England was nat- 
urally less than before the war, and the balance 
was of course much in England's favor.* Because 
of the retention of the frontier posts in British 
hands — for these were not given up at the close of 
the war — a large portion of the fur-trade, which had 
brought in considerable profit, was confined to the 
British companies and merchants. 

* Sheffield, Observations (ed. of 1784), App., 340-345. 

2 Adams, Works, VIII., 323. 

" Pitkin, Statistical View of the Commerce of the U. S., 17, 30. 



1785] COMMERCE 75 

■ All this affected chiefly the New England carrying- 
trade, and points to a derangement of the old 
conditions and a need of adjustment. But the 
south, too, was suffering in a measure; it had re- 
cently been in the hands of the enemy and was 
much torn by civil strife ; many thousands of slaves 
had been carried away by the British. The life 
of the plantation was therefore considerably dis- 
turbed, and the conditions necessitated or seemed 
to necessitate the introduction of more slaves ; time 
was needed to get new supplies, ''to rebuild their 
houses, fences, barns, etc., . . . and to repair the other 
ravages of the war." ^ The exportation, therefore, of 
southern products diminished in amount and value 
in the first few years after the war.^ The decrease 
in ship-building was a discouraging sign of the 
general situation. throughout the country.^ 

Of course it took time for commerce to find new 
outlets and for business to adapt itself to the close 
competition and careful bargaining of ordinary 
times after the excitement and risk of war. Some 
things the merchants of the north soon proceeded 
to do ; they once again adjusted themselves to facts, 
not without loud outcries and not without ultimate 
profit. Ere long the hardy privateersman entered 
lustily into foreign trade ; for the privateering, after 

* Jefferson, Writings (Ford's ed.), IV., 204. 

^Drayton, View of South Carolina, 167; Am. State Papers, 
Com. and Nov., I., 32, 33. 

^"Letters of Phineas Bond," in Am. Hist. Assoc, Report, 
1896, I., 638. 



76 CONFEDERATION AND CONSTITUTION [1784 

all, was but an interlude, a passing stage, between the 
great negro and rum trade of the earlier days and 
the European and Oriental traffic that rapidly grew 
in importance in the first decade after the war. 
In February, 1784, the Empress of China sailed 
from New York for the Far East, and the next year 
the enterprising Derby sent out The Grand Turk for 
the Isle of France and Canton. With continental 
Europe a profitable trade was springing up. Sixty 
American vessels entered the port of Lisbon in 
1785 from American and foreign ports and only 
seventy-seven European vessels from the same 
ports ; ^ and with France and some of the other con- 
tinental countries the traffic was considerable. In 
this way and in others the people were finding new 
industrial organization, making good such losses 
as they had suffered in the war, and reaching 
out for a new prosperity, which could only come 
in its fulness, however, when the political sys- 
tem gave assurance of protection and opportu- 
nity. 

At the end of the war, in some portions of the 
country, if not in all, there was no dearth of money. 
Probably never throughout the course of colonial 
history had there been so much specie as circulated 
in the coimtry immediately after the withdrawal 
of the English troops. For it must be remembered 
that during eight years and more the English ex- 
chequer had been sending its sovereigns to America, 
^ Dip. Corresp., 1783-1789 <3-vol. ed.), II., 577. 



1786] COMMERCE 77 

that France had freely lent her gold/ that the 
American farmer and merchant had received the 
bright guineas and louts d'or of the foreign armies 
without even the appearance of hesitation. When 
we remember the merry winter that Howe spent at 
British expense in the "rebel capital," we know 
how some specie got into circulation in the states. 
Some of this money left the country soon after the 
peace, for there was an enormous influx of European 
goods; markets were glutted and merchants cried 
aloud for buyers.^ It has been estimated that in the 
three years succeeding the war at least £1,260,000 
in coin went to England.^ But in spite of the rising 
fear of paper money, which of course tied knots in 
the purse-strings of those who had good money, and 
notwithstanding all sorts of obnoxious laws that 
threatened the creditor with loss, commerce and 
industry were by no means lifeless. 

To know, therefore, just what the situation was 
in 1785 or 1786 is difficult; but probably we are 
justified in saying that commerce had grown in 
vigor and was ready to enter upon a course of great 
activity, if it could be reasonably safe from the 
harassing perils of paper money and the annoyance 
of tender-laws, and could rely on the protection of 
a good government that could pass proper regula- 
tions for trade and form respectable treaties with 

* Wharton, Dip. Corresp. of Am. Rev., VI., 341. 
' Tench Coxe, View (Philadelphia, 1794), 49; Sheffield, Obser. 
vaiions (ed. of 1784), 248. ' Pa. Gazette, July 19, 1786. 



78 CONFEDERATION AND CONSTITUTION [1783 

foreign goverrments. Though the trade, especially 
of New England, was badly deranged, the com- 
merce and industry . of the cotintry were by no 
means in a hopeless condition. Everywhere were 
indications of improvement, even if in some places 
the ravages of war had not been overcome. The 
main danger to commerce, and the cause of possible 
disaster, was the paper-money craze, of which we shall 
speak in another chapter. Trouble, confusion, and 
lament there were, and for complaint there was some 
reason ; but, if we believe the testimony of many per- 
sons of insight, there was not poverty or destitution. 

" Population is encreasing," Charles Thompson re- 
ported to Jefferson, ** new houses building, new lands 
clearing, new settlements forming, and new manu- 
factures establishing with a rapidity beyond con- 
ception, and what is more, the people are well clad, 
well fed, and well housed. Yet I will not say that 
all are contented. The merchants are complaining 
that trade is dull, the farmers that wheat and other 
produce are falling, the landlords that rent is lower- 
ing, the speculists and extravagant that they are 
compelled to pay their debts, and the idle and the 
vain that they cannot live at others cost and gratify 
their pride with articles of luxury." ^ 

To expect to borrow money abroad without 
making any effort even to provide means of paying 
interest was absurd, and the failure of the five-per- 
cent, impost scheme of course made the prospect of 
* N. Y. Hist. Soc, Collections, 1878, p. 206. 



1786] COMMERCE' 79 

relief darker.^ In April, 1783, soon after Morris 
declared that American credit was hopelessly at an 
end, Congress made another effort to procure a 
steady means of income ' ' as indispensibly necessary 
to the restoration of public credit." The states 
were requested to alter the Articles of Confedera- 
tion so as to invest Congress for twenty-five years 
with the power to levy for federal purposes a small 
duty on imported goods, with the express under- 
standing that the income should be used only for 
the discharge of the principal and interest of the 
debt;^ they were also requested to establish for a 
term of twenty-five years and to appropriate to the 
discharge of the ptiblic debt some substantial and 
effectual revenue, according to such plans as they 
might deem convenient. Each was asked to pay in 
this manner its proper proportion of $1,500,000 
annually. With these requests was a recommenda- 
tion that the section of the Articles of Confedera- 
tion providing that quotas of taxes for federal pur- 
poses be in proportion to the value of lands within 
their respective limits should be altered, so that in 
the future the taxes should be applied by the states 
in proportion to ^he whole number of free inhabitants 
and three-fifths of all other persons, except Indians 
not taxed. 

In spite of all efforts and though the need was 
sore, the recommendations were not followed by 

* Franklin, Works (Sparks's ed.), IX,, 459. 
^Journals of Congress, April 18, 1783. 



8o CONFEDERATION AND CONSTITUTION [1781 

the states. Each watched the other warily, fearing 
that its neighbor might win some commercial ad- 
vantage. Three years after the measure was laid 
before the states for adoption, seven states — New 
Hampshire, Massachusetts, Connecticut, New Jersey, 
Virginia, North Carolina, and South Carolina — had 
granted the impost in such a manner and under 
such restrictions that if the other states had made 
similar grants the plan of the impost might im- 
mediately have gone into operation. But Penn- 
sylvania and Delaware had consented to the meas- 
ure with the proviso that it should not go into 
effect until all of the states passed laws in con- 
formity with the whole revenue system proposed. 
Only two of the states — Delaware and North Caro- 
lina — acceded to the system in all its parts ; and four — 
Rhode Island, New York, Maryland, and Georgia — 
did not decide in favor of any part of the system. 
Assured that no money could otherwise be secured, 
Congress appealed again to the states as late as 
1786, urging them to pass laws for the carrying 
out of the plan and pleading with them for authority 
to collect the impost.* 

The financial condition of the Confederation was 
by this time deplorable. From requisitions $2,457,- 
987.25 were received by Congress from November i, 
1 7 8 1 , to January i , 1786; for the last fourteen months 
of this period the income was but $432,897.81, which 
was at the rate of $371,052 per year, a sum short of 

^Journals of Congress, February 15, 1786. 



1789] COMMERCE 81 

what was necessary "for the bare maintenance of the 
federal government on the most economical es- 
tablishment, and in time of profound peace." * 
Unless the country was to be rated as hopelessly 
bankrupt from sheer unwillingness to pay taxes, 
something had to be done, inasmuch as $577,000 
was due for interest on foreign loans before June 
I, 1787; from that time forward, for some years, 
interest and capital due on the foreign debt alone 
amounted to over $1,000,000 annually. The total 
debt, foreign and domestic, which amounted in 1784 
to over $35,000,000, was growing by the addition 
of unpaid interest, which of course rolled up rap- 
idly; the arrears of interest on the domestic debt 
increased from $3,109,000 in 1784 to $11,493,858 
before the end of 1789, while the principal alone 
of the foreign debt increased from $7,830,517 to 
$10,098,707 in the same time.^ Conditions would 
have been even worse without the aid of the Dutch, 
who were of constant assistance, lending the strug- 
gling Congress in these five years $2,296,000, and 
thus in a measure supporting the public credit of 
America in Europe. 

Meanwhile the income from taxation was scarcely 
sufficient to pay the running expenses of the govern- 
ment, while Congress was doing little more than 
performing the functions of a stately debating 

* Report of committee, Journals of Congress, February 15, 1786. 
' Bullock, The Finances of the U. S., lyy^-i^Sg, in Univer- 
sity of Wisconsin, Bulletin, Hist. Series., I., 145, n, 181, 187. 



82 CONFEDERATION AND CONSTITUTION [1786 

society. Money was needed for everything — to pay 
the servants of the government at home and its 
representatives abroad, to secure immunity from 
attack from the Barbary pirates on the ocean and 
from the Indians on the frontier, to save the country 
from the shame of defaulting in interest. "The 
crisis has arrived," said a committee of Congress, in 
February, 1786, **when the people of these United 
States, by whose will, and for whose benefit the 
federal government was instituted, must decide 
whether they will support their rank as a nation, by 
maintaining the public faith at home and abroad; 
or whether, for want of a timely exertion in es- 
tablishing a general revenue, and thereby giving 
strength to the confederacy, they will hazard not 
only the existence of the union, but of those great 
and invaluable privileges for which they have so 
arduously and so honorably contended." * 

The penury of the government was so patent that 
men listened to this eloquent appeal. "Oh! my cotin- 
try!" exclaimed Jeremiah Belknap, of New Hamp- 
shire. "To what an alarming situation are we re- 
duced, that Congress must say to us, as Joshua did 
to Israel, * Behold, I set before you life and death.' 
. . , We must be drove to our duty, and be taught 
by briars and thorns, as Gideon taught the men of 
Succoth." 2 The states were at last moved by 

* Journals of Congress, February 15, 1786. 
' Belknap Papers, I. (Mass. Hist. Soc, Collections ^ 5th series, 
110,431,432. 



1787] COMMERCE .83 

the appeal of Congress, and all but one of those 
that had not acted granted the impost before 
the end of 1786. Governor Clinton, of New York, 
however, politely refused to do anything, declaring 
that he did not have the power to summon the 
legislature except on extraordinary occasions/ 

In New York, as in Virginia, there was a strong 
party opposed to growth of the national authority 
and exceedingly jealous for the power of the state. 
Clinton was the leader of this party, and opposed to 
him was Hamilton, who worked unceasingly for a 
broader appreciation of the duties and responsi- 
bilities of Congress. Hamilton prepared a petition, 
which was widely circulated, asking the adoption 
of the revenue scheme, and declaring that all the 
motives of public honor and reputation demanded 
that New York yield.^ The petition had no effect, 
and when the next year he took his place in the 
legislature of the state his eloquent speeches won 
him laurels but not converts ; the opposition in the 
legislature, without replying to Hamilton's argu- 
ment, simply voted against him, which led to the 
remark that the ''impost was strangled by a hand 
of mutes y ^ Much labor must yet be done by 
Hamilton, Schuyler, and Jay before New York 
could be brought to take a hberal view of con- 
tinental politics, or indeed to do her plain duty. 

• Journals of Congress, August 23, 1786. 

2 Hamilton, Works (Hamilton's ed.), II., 333, 334. 

* Hamilton, Hist, of the Rep., III., 228. 



84 CONFEDERATION AND CONSTITUTION [1784 

The commerce of the country, though by no 
means insignificant,* was in the mean time, as we 
have already seen, in considerable confusion be- 
cause of the heavy importations of foreign goods. 
Men were now feeling the pressure of debt, and the 
restraints put on American trade by the British 
orders in council were irksome in the extreme. 
The merchants and vessel - owners of the north 
chafed at England's restrictions, which limited the 
market for American oils and cut off our com- 
munication with the West Indies. As early as 
April 30, 1784, Congress passed resolutions declaring 
it advisable to meet the restrictions of England with 
similar restrictions, and requesting the right for 
fifteen years to pass a navigation act, and thus 
prohibit the importation or exportation of any 
goods in ships belonging to or navigated by subjects 
of any power with whom the United States should 
not have a treaty of commerce. Authority was 
also asked to prohibit during the same time the 
subjects of any foreign state, imless authorized 
by treaty, from bringing into the United States 
merchandise which was not the produce or manu- 
facture of the dominions of their sovereign .^ 

There was considerable excitement and interest 
on this matter, especially in the north. The mer- 

* Jay, Corresp. and Public Papers, III., 153, 154; Am. Hist. 
Assoc, Report, 1896, I., 726-729; Senate Ex, Doc, 34 Cong., 
I Sess. (1856), No. 107, p. 41. 

' Journoils of Congress, April 30, 1784. 



1786] COMMERCE 85 

chants of Boston, much wrought up over the sub- 
ject, and naturally resorting to pre-Revolutionary 
methods, entered into agreement not to import 
English goods. ^ The Boston men felt strongly that 
something must be done to invest Congress with 
powers of retaliation, for it was plain enough that 
a navigation law passed by Massachusetts alone 
would simply drive commerce to other ports. So 
strongly did Massachusetts feel the need of some 
general regulation that the general court in July, 
1785, passed resolutions favoring a convention to 
revise the Articles of Confederation. 

But, on the whole, the request of Congress for 
power to pass a navigation act met with a cold 
reception in the states. They acted with great 
deliberation, as if some foreign power rather than 
their own representatives were asking for authority. 
Two years and a half after Congress had asked for 
the power, all of the states had in one form or an- 
other acted in the matter, but some of them had 
burdened their grants with so many qualifications 
and conditions that Congress was compelled once 
again to issue an appeal (October 26, 1786). On the 
whole, the middle states favored the measure, the 
eastern states were anxious to have it adopted, while 
in the southern states there was much difference 
of opinion. 2 The planters feared that the author- 
ity would be used by Congress for the benefit of 

* Bancroft, Hist, of the Const, I., 188. 

' Madison, Writings (Hunt's ed.), II., ?8q. 



86 CONFEDERATION AND CONSTITUTION [1785 

northern commerce and to the injury of southern 
interests. 

Refusing to grant power to Congress, the states 
could not themselves act in unison. Some of them 
had passed their own acts in regulation of com- 
merce,^ but such independent measures were in- 
effectual. * ' The States are every day giving proofs, ' ' 
said Madison, "that separate regulations are more 
likely to set them by the ears, than to attain the 
common object.^ In fact, their laws were confusing 
and conflicting. There seemed at times to be little 
desire to reach a common basis for the regula- 
tion of commerce or the levying of imposts. Too 
often legislation was shaped rather by jealousy 
and the hope to win trade away from a neighbor- 
ing state than by principles of wise policy or fore- 
sight.^ 

In the mean time Congress could do little or noth- 
ing. A good part of the time not enough states were 
represented to allow action of any kind. On only 
three days between October, 1785, and the follow- 
ing April were there nine states on the floor.^ Res- 
olutions and letters sent to the state governments 
were quite without effect. The next year (1786- 
1787) there was not a quorum for months. ''The 

* Bancroft, Hist, of the Const., I., 191. 

' Madison, Writings (Hunt's ed.), II,, 227. 

2 Cf . Laws of New Jersey (1800), 54; Laws of New York 
(1886), II., 65; Pennsylvania Acts (i 785-1 786), 85; Laws of 
Delaware, II., 831-837. 

* King, Life and Corresp. of King, I., 133. 



1787] COMMERCE 87 

civil list begin to clamour," said King, in April, 
1786, '' — there is not money to pay them. . . . 
The handful of troops over the Ohio are muti- 
nous and desert because they are unpaid. The 
money borrowed in Europe is exhausted and this 
very day our Foreign Ministers have it not in 
their power to receive their salaries for their sup- 
port." ^ 

Evidently not much longer could the futile Con- 
federation hang together. The ablest men, looking 
about them and seeing the danger, realized that the 
crisis was near. "Even respectable characters" 
were talking '' without horror" ^ of monarchy. Jay, 
much disturbed by the spirit of faction, the greed 
for money, the disregard of public duty, was uneasy 
and apprehensive, more so than during the war. 
Even those who complained of industrial derange- 
ment were willing to say that the trouble was largely 
with the people, whose habits of thrift and economy 
had been disturbed by the war, and with the in- 
competent Congress which had ''scarcely the . . . 
appearance of a Government." ^ But the times were 
teaching their lessons. "Experience has taught 
us," said Washington, " that men will not adopt and 
carry into execution measures the best calculated 
for their own good, without the intervention of a 
coercive power. I do not conceive we can exist long 



b 



* King, Life and Corresp. of King, I.,. 134. 
' Washington, Writings (Ford's ed.), XI., 55. 
' Am. Hist. Assoc, Report, 1896, 1., 740. 



88 CONFEDERATION AND CONSTITUTION [1786 

as a nation without having lodged some where a 
power, which will pervade the whole Union in as 
energetic a manner as the authority of the State 
governments extends over the several States." ^ 

* Washington, Writings (Ford's ed.), XI., 53, 54. 



CHAPTER VI 

DIPLOMATIC RELATIONS 
(1783-1788) 

WHILE the Confederation was troubled with 
poverty and discontent at home, its foreign 
relations were far from satisfactory; for here again 
the incompetence of Congress was shown, making 
it difficult to reach satisfactory conclusions with 
other powers. The nations of Europe were in no 
mood to take the trouble of pleasing the United 
States. France felt little or no interest in the 
political career of the country for whose cause she 
had been ostensibly fighting; she had little ex- 
pectation that America would soon play a prominent 
role among the nations, and she had no desire to see 
the young republic push forward to prosperity and 
influence. The French statesmen were not un- 
willing to offer opportunities for trade, but were dis- 
appointed at the tendency of American merchants 
to carry on their commerce with England. English 
statesmen were cold and critical or absolutely un- 
friendly. They could see little to be gained by a 
consideration for the upstart republic which had 
been so anxious to cast aside the guiding hand of 

89 



90 CONFEDERATION AND CONSTITUTION [1782 

the mother-country. Spain respected America, per- 
haps, somewhat more than before the war; and her 
ministers may have wondered whether they had 
shown superior intelligence in treating the American 
representatives abroad with such masterly hauteur ; 
but with this new respect, if such there was, came 
no addition of friendliness nor any purpose to sur- 
render a portion of her policy. If she disliked and 
distrusted the states when they were fighting her 
detested enemy, England, she liked them no more 
when they had won their independence and were 
setting up titles to lands skirting her precious 
colonies on the Gulf of Mexico. 

Some of the other European states showed an 
occasional gleam of interest in the possibility of 
securing some hold on the western trade. With 
Portugal especially there grew up an important 
commerce ; Adams had succeeded in getting a treaty 
with Holland, even before the peace; in 1783 one 
was made with Sweden ; and in 1 785 a treaty of com- 
merce was made with Prussia. But perhaps the 
Barbary pirates really had the most intelligent ap- 
preciation of the fact that the United States were 
no longer British colonies, and they naturally con- 
fined their attention to the seizure of American 
ships and seamen, an occupation in which they 
indulged with their customary success. 

The most serious diplomatic questions that arose 
were, in their essentials, those which had proved 
most perplexing and troublesome during the ReV'- 



178s] DIPLOMACY 91 

olution. Throughout the war Spain had haughtily 
refused to recognize the independence of the states 
or to enter into a treaty of alliance. Wishing to 
retain a monopoly of their colonial commerce, and 
fearing that the aggressive Americans would en- 
croach upon their colonies, the anxious Spaniards 
had watched the course of the Revolution, vexed by 
irreconcilable fears and incompatible hopes, longing 
to see England humiliated and destroyed and dread- 
ing to see the impertinent rebels succeed. 

When the treaty between England and the United 
States was published, Spain saw much cause for 
.fault-finding. Her claims in the southwest, which 
she had for some years been steadily asserting and 
gradually extending, were by the treaty quietly 
ignored, for the line agreed on in the treaty ran 
down the Mississippi to the thirty-first parallel and 
thence by this parallel to the Appalachicola. Eng- 
land asserted at the same time the right of both 
England and America to navigate the Mississippi 
from its source to the gulf. In these cessions vSpain 
had no intention of acquiescing. For some years 
she had been making much ado about the western 
country and the Mississippi, and even if the French 
ministers, with a half -amused shrug of the shoulders, 
were willing to recognize the results of the astute 
diplomacy of Jay and the other audacious Amer- 
icans, Spain certainly would not yield up her claims. 
Less superciliously, but not less obstinately than 
before, she adhered to the purpose by cunning and 



92 CONFEDERATION AND CONSTITUTION [1783 

by force to keep the western Americans away from 
her possessions; for the cardinal principle of the 
Spanish colonial policy was monopoly and seclusion. 
The idea of allowing the Americans to traffic with 
her subjects or to introduce into her colonies the 
dreadful notions of freedom was intolerable. 

The secret clause of the treaty of 1783 could not 
long be kept from the knowledge of Spain. It was 
soon known at Madrid that America had promised, 
in case England in her negotiations with the other 
combatants succeeded in holding West Florida, to 
accept as her southern boundary between the 
Appalachicola and the Mississippi a line running 
through the mouth of the Yazoo. ^ The knowledge 
that such an arrangement had been made may 
have added to the ill -humor of Spain; but her 
wrath needed no stimulus; her course of opposition 
to the United States had been for years consistent 
and unflagging. She did not long delay in letting 
Congress know that she had no intention of abiding 
by the boundaries that England had set or of ad- 
mitting the right of the Americans freely to navigate 
the Mississippi to its mouth. In the simimer of 
1784 Congress was formally warned that England 
had no right to make such generous cessions at a 
time when the two borders of the river were held 
by the arms of Spain ;^ and that, until the limits of 
Louisiana and the two Floridas should be settled 

' See above, chap. ii. 

* Secret Journals of Congress, December 15, 1784. 



1784] DIPLOMACY 93 

and determined, American citizens, by seeking to 
navigate the Mississippi, would only expose their 
vessels to confiscation. Naturally this news was 
not relished by Congress. Its members had been 
debating the western land question for years, and 
when England surrendered practically all that 
was asked from her they were not pleased to find 
Spain standing in the way as unreasonably as 
ever. 

Spain did not content herself with formal warn- 
ings. On this subject she was in earnest; on this 
one matter her ministers had convictions. She was 
determined to hold fast to her colonies, even though 
they were strangled in her grasp. There were vari- 
ous methods open to her, and she was under strong 
temptation to use all of them: first, to carry on 
frank and fair diplomatic negotiations, backed by a 
maintenance of her authority on the river and in the 
disputed territory; second, to intrigue with the 
Indians, who by sundry well-known methods could 
be induced to make the life of the western pioneer 
unpleasant and his residence in the Mississippi 
Valley unattractive ; * third, to stir up dissatisfaction 
among the American settlers, and by bribes and 
threats help to bring about the separation of the 
western territory from the eastern states. Spanish 
gold looked good and fair to the average westerner, 
whose currency was often nothing better than 
otter skins or whiskey, and it was not hard to find 

' Gayarr^, History of Louisiana^ III., 185-193. 

VOL. X. — 8 



94 CONFEDERATION AND CONSTITUTION [1785 

those whose consciences did not revolt at the sight 
of a reasonable bribe. 

In the early summer of 1785 Don Diego de Gar- 
doqui came to Philadelphia as the first Spanish 
minister, presenting a commission authorizing him 
to treat with the United States concerning boun- 
daries and to settle all differences on that subject.* 
To John Jay, the secretary for foreign affairs, 
Congress intrusted the duty of carrying on the 
negotiations. Inasmuch as Jay had in the past 
taken such an independent stand against Spanish 
prestmiption, he might well have been expected to 
be especially opposed to the Spanish claims in the 
Mississippi Valley. But in Gardoqui Jay found 
a foeman worthy of his steel. The wily Spaniard, 
knowing the feebleness of Congress, probably aware 
of the intrigues on the frontier, and conscious that 
no harm could come to the Spanish cause by delay, 
so long as Spain actually held the country in dis- 
pute, was unyielding to the last degree. 

Before the negotiations were begun Jay had 
written Lafayette that the Kentucky settlements 
were increasing "with a degree of rapidity hereto- 
fore unknown in this country," ^ and that they would 
continue to increase notwithstanding the attempt 
of anybody to prevent it. And yet, perhaps, in 
spite of all he had done before, Jay did not quite 
appreciate the fact that the right to navigate the 

* Secret Journals of Congress, July 20, 1785. 
•Jay, Corresp. and Public Papers ^ III., 138. 



1785] DIPLOMACY 95 

Mississippi must be speedily secured. It was no 
longer a theoretical right affecting American pride 
and ambition and only vaguely touching American 
life, for now the great western wilderness, to which, 
when the Revolution began, only a few hardy hunt- 
ers and adventurers had found their way, was being 
rapidly peopled. With that patient endurance, that 
marvellous disregard of danger, which have charac- 
terized the frontiersman in our history, men were 
moving into the new country, following Boone's old 
wilderness road through eastern Tennessee, or float- 
ing down the Ohio to found settlements in the 
attractive land of Kentucky. In 1785 the in- 
habitants of the latter region were estimated to be 
more than twenty thousand persons,^ and the pop- 
ulation was increasing with a remarkable rapid- 
ity that surprised even those who were used to the 
ease of American movement. ''Do you think to 
prevent the emigration from a barren country load- 
ed with taxes and impoverished with debts/ to the 
most luxurious and fertile soil in the world?" wrote 
an exuberant pioneer at the Falls of the Ohio to a 
friend in New England. ' ' You may as well endeavour 
to prevent the fishes from gathering on a bank in 
the sea which affords them plenty of nourishment." ^ 
Of course these self-reliant and eager frontiersmen 

* Lewis Brantz, "Memoranda of a Journey in the Western 
Parts of the United States in 1785," in Schoolcraft, Indian 
Tribes, III., 342; see Roosevelt, Winning of the West (ist ed.), 
III., 16. 

^Secret Journals of Congress ^ April 13, 1787 (paper viii.). 



96 CONFEDERATION AND CONSTITUTION [1785 

could not long be kept from using the Mississippi 
and following its current to the gulf. 

Jay was instructed to insist on the recognition 
of the thirty-first parallel and the free navigation 
of the Mississippi to its mouth, rights guaranteed 
by the treaty with England.* Over this question he 
and Gardoqui debated and haggled until Jay was 
weary. In February of 1786 he reported that the 
discussions were still in progress and that American 
rights on the Mississippi could be secured only '*by 
arms, or by treaty.'' ^ Doubtful of the success of 
the negotiations, he was, nevertheless, anxious that 
the matter should not be precipitated by rash de- 
mands or by inconsiderate action in the west, for 
the time was not come for war, and the building up 
of the western country and the gradual regulation of 
the affairs of the nation would enable America to 
attain its ends. The fact is, the negotiations were 
becoming more and more disagreeable. Gardoqui 
flatly informed Jay that the king refused to rec- 
ognize the treaty of 1783 as binding him. Then 
from polite circumlocutions he resorted to unam- 
biguous threats, reminding Jay that the friendship 
of the king could win in considerable measure the 
friendship of Morocco and Algiers, and calling to 
mind the fact that America was in debt to Spain.* 

Jay in desperation asked for a special committee 
of Congress to advise and instruct him. In August 

* Secret Journals of Congress, August 25, 1785. 

' Ibid., February 28, 1786. ' Ibid., August 3, 1786. 



1786] DIPLOMACY 97 

he made a long report. Spain, he said, was ready 
to make a favorable commercial treaty, but would 
not yield an inch on the western question. What, 
then, was to be done ? America was in no condition 
to fight and could not disgracefully surrender her 
claims. But one thing was left. Jay thought, and 
that was to enter into a treaty limited to a duration 
of twenty-five or thirty years, securing commercial 
advantages, and stipulating that the United States 
would forbear the use of the Mississippi below its 
boundaries. Unless some such step were taken, the 
secretary declared, he could see no hope, at least 
not until the American nation should " become more 
really and truly a nation " than it was in those dis- 
consolate months of 1786. " For, unblessed with an 
efficient government, destitute of funds, and with- 
out publick credit, either at home or abroad, we 
should be obliged to wait in patience for better days, 
or plunge into an impopular and dangerous war 
with very little prospect of terminating it by a 
peace, either advantageous or glorious." 

One of the stipulations of this proposed com- 
mercial treaty was to the effect that, inasmuch as 
America was often in need of gold and silver as a 
circulating meditim, his Catholic majesty would 
agree to order in this country the masts and timber 
for his royal navy and pay for them in specie. 
Nothing could more lucidly show the apparent 
magnificence of decrepit old Spain, whose whole 
colonial empire, built on a principle of seclusion and 



98 CONFEDERATION AND CONSTITUTION [1786 

selfishness, was on the very brink of ruin, and, on 
the other hand, the humiliating poverty of young 
America, whose feet were already set on the highway 
to wealth and imperial grandeur. 

Heated debates ensued in Congress. The south- 
ern states voted solidly against Jay's proposition, 
for they still claimed land beyond the AUeghenies, 
and their citizens were passing over into the great 
valley. The northern states just as unanimously 
voted to relieve the secretary from his former in- 
structions, which directed him to insist on the 
boundaries of the treaty with England and on the 
navigation of the Mississippi; for the New-Eng- 
landers were naturally anxious for a commercial 
treaty and were not solicitous about the southwest. 
Twelve states were in attendance, and Jay was open- 
ly supported by a vote of seven ; but it was a ques- 
tion as to whether less than nine states could give 
him authority to make a treaty. Certainly nine 
states would be needed to ratify any agreement he 
should reach. A candid examination of Jay's em- 
barrassment will convince the reader that he was 
not weak. His difficulties were stupendous; a 
large portion of the burden of the government was 
thrown on his uncomplaining shoulders, and he 
toiled honestly and ably. Congress was fit for 
little, and the country was woful and distracted. 
And yet men on the frontier and the self-complacent 
men in the east spoke of resisting Spain's demands 
and defending American rights. 



1786] DIPLOMACY 99 

Some wise men even in the south admitted that 
there was no haste, and the wisest of them all said 
frankly, more than once, that until there was time to 
open and make easy the ways between the Atlantic 
states and the western country the obstruction of 
the Mississippi would not be harmful. "There is 
nothing," wrote Washington to Lee, "which binds 
one county or one State to another, but interest. 
Without this cement the western inhabitants, who 
more than probably will be composed in a great 
degree of foreigners, can have no predilection for us, 
and a commercial connexion is the only tie we can 
have upon them." ^ But the Virginians, as a rule, 
were indignant that the north should seize the ad- 
vantage of a commercial treaty and barter away 
the rights of the south. Even the mild-mannered 
Madison was near to anger,^ and Patrick Henry 
was reported to have remarked " that he would 
rather part with the confederation than relinquish 
the navigation of the Mississippi." ^ Coming at a 
time when efforts were being made to solidify the 
Union and to increase the power of the national 
government, the Mississippi question, which could 
indeed be solved only by national growth and 
national authority, increased for a period the par- 
ticularistic spirit and put obstacles in the way of 
those who were working for union and government. 

* Washington , Writings (Ford's ed.), X., 488. 
'Madison, Writings (Hunt's ed.), IL, 262 et seq. 
" I^ee, Arthur Lee, IL, 321. 



100 CONFEDERATION AND CONSTITUTION [1786 

The people of the west were out of patience with 
the delay and annoyed at the notion of surrendering 
the navigation of the Mississippi. **To sell us, and 
make us vassals to the merciless Spaniards, is a 
grievance not to be borne," * said one. There was 
danger of war, brought on by the impatient fron- 
tiersmen, who fretted at being hemmed in by the 
mandate of Spain. Moreover, ambitious conspir- 
ators were beginning to contemplate alliance or 
political connection with Spain,^ or at least the 
separation of the Kentucky country from the Union. 
The most adroit of the plotters was James Wilkinson. 
He had been an officer in the Revolution, and with 
other traders and sharpers had recently moved to 
Kentucky to make his fortune, and no methods 
were too dishonorable to suit his purpose. Scarcely 
thirty years of age, he was already well entered on 
the career of corruption which won him the well- 
deserved reputation of being the most finished 
rascal in American annals. A copy of a paper by 
Wilkinson announcing his allegiance to the king of 
Spain has been found in the Spanish archives. In 
the end he did not accomplish much, though doubt- 
less he was satisfied so long as he lined his pockets 
with Spanish gold. It is hard to-day to take the 
plots of the conspirators very seriously, for, out of 
patience as they were, the people of Kentucky were 
too loyal to break away from the Union. But they 

* Secret Journals of Congress, April 13, 1787 (paper viii.). 

* Amer. Hist. Review, IX., 490 et seq. 



1787] DIPLOMACY loi 

had no sympathy with schemes for giving more 
power to the central authority when they heard 
that Congress was actually considering the pos- 
sibility of surrendering the use of the great river 
that formed their outlet to the sea. 

During the winter of 1 786-1 787 negotiations be- 
tween Jay and Gardoqui dragged wearily on. The 
Spaniard would not yield on the main points at 
issue, and the following spring Jay still believed that 
the only way out of the difficulty was to promise 
not to navigate for a time the lower course of the 
river. But he reported that the negotiations were 
''dilatory, unpleasant and unpromising."* Noth- 
ing was done until, under better conditions, the 
Americans with a new government were able to 
speak with more assurance. In the meantime popu- 
lation continued to pour into the valley, and the 
day could not be far distant when the demand of 
the west for the free use of the Mississippi must be 
obeyed. 

While Spain was occupying the southwest and 
denying that America had any title to territory as 
far south as the thirty-first parallel, England, in her 
turn, was quietly holding the frontier forts on the 
northern boundary within the limits marked out 
by the treaty of peace. By the retention of these 
strategic positions from Lake Champlain to Michili- 
mackinac English influence over the Indians was 
made secure and English traders were enabled to 

* 5ecret Journals of Congress, April 13, 1787, September 16, 1788. 



I02 CONFEDERATION AND CONSTITUTION [1783 

retain their hold on the fur-trade in a rich and ex- 
tensive region. For some years after the peace, 
therefore, and indeed through the whole of the 
period covered by this volume, a large portion of 
American territory was held by England and Spain 
in simple disregard of the treaty. The settlers in 
the region south of the Ohio plotted with Spain or 
threatened to fight her, and meanwhile grew in niom- 
bers and strength; into the north for seven years 
after the peace there was almost no immigration, 
and for some years after that the presence of the 
English within the limits marked off by the treaty 
was a constant cause for irritation. 

In 1785 John Adams, who was then in Paris, was 
appointed minister to England. He went to London 
in hopes that he could enter into some commercial 
agreement satisfactory and helpful to the United 
States, persuade England to withdraw her troops 
from our territory, and secure indemnity for the 
exportation of the negroes from America after the 
peace in plain violation of the treaty.^ He had a 
hard task before him. If at the close of the war there 
had seemed some chance that the English, hating 
the Spaniards and the French with a manly hatred, 
would be especially considerate of the welfare of 
their kinsmen across the sea, hope of any such good 
temper soon disappeared. Adams was probably as 

* For this whole subject, see McLaughlin," Western Posts and 
British Debts," in Am. Hist. Assoc, Report, 1894, 413-444; 
Dip. Corresp., iy8^-ij8g (3-vol. ed), II., 340. 



1785] DIPLOMACY 103 

well fitted as any one could be to undertake the task 
assigned him. If English ministers were blunt and 
self-satisfied, no less was Adams. It never occurred 
to him to fawn and flatter or to be ashamed of the 
young, distracted country he represented; and in 
power of lucid, forceful expression or in knowledge 
of public law he had few, if any, superiors among 
the English statesmen of the time. 

The residence in England began auspiciously. In 
June^ Adams was presented to the king and was 
courteously received. His words were well chosen, 
and seem to have deeply affected the monarch, who 
had not ceased to mourn the loss of his colonies. 
Adams expressed the hope that he could be in- 
strumental in *' restoring an entire esteem, con- 
fidence, and affection; or, in better words, the old 
good nature and the old good htmior between 
people who, though separated by an ocean, and under 
different Governments, have the same language, 
a similar religion, and kindred blood." The king, 
after polite words of commendation and a declara- 
tion that he had done in the past only what he felt it 
his duty to do, assured Adams that he would be the 
first to meet the friendship of the United States. 
** The moment I see such sentiments and language as 
yours prevail, and a disposition to give this country 
the preference, that moment I shall say, let the 
circumstances of language, religion, and blood have 
their natural and full effect." 

» Dip. Corresp., 1783-1789 (3-V0I. ed.), II., 368-371. 



104 CONFEDERATION AND CONSTITUTION [1785 

The mission thus pleasantly begun was, however, 
destined to prove almost fruitless. The English 
ministers were leisurely and deliberate, while Adams 
with remarkable humility and praiseworthy per- 
sistence sought to discover why England did not 
give up our territory. In October he wrote to 
Jay: "I have the honor to agree fully with you in 
your opinion, that 'it is manifestly as much the 
interest of this country to be well with us as for 
us to be well with them ' ; but this is not the judgment 
of the English nation, it is not the judgment of 
Lord North and his party, it is not the judgment 
of the Duke of Portland and his friends, and it 
does not appear to be the judgment of Mr. Pitt and 
the present set." ^ He found the Englishmen con- 
fident that America could do nothing, neither raise a 
revenue, nor exclude shipping of foreign nations, nor 
build a fleet, and in truth they were not far from 
right. 

Finally, nearly five months after his dramatic 
interview with the king, Adams succeeded in getting 
from the retentive ministers some notion as to their 
intentions. Lord Carmarthen told him that the 
frontier posts would not be delivered till " the debts 
were paid." "Paid! my Lord!" ejaculated Adams; 
**that is more than ever was stipulated."^ It was 
February,^ however, before the ministry gave an 
explicit answer to the American demands. The 

^ Dip. Corresp., i^Sj-iySg (3-vol. ed.), II., 478-482. 
* Jbid., 484. * Ibid., 581. 



1788] DIPLOMACY 105 

fourth article of the treaty stipulated that creditors 
of either country should find no lawful impediment 
to the recovery of their debts. To this article 
Carmarthen said America had paid little attention, 
and it would be foolish to suppose that England 
was obliged to carry out her promises if the United 
States was not imder a similar obligation. Further 
satisfaction than this Adams could not get. He re- 
turned home in 1788 without a treaty and without 
much hope that England would deviate by a hair 
from the path which seemed to her the best-suited 
to her own gain. 

Doubtless England refrained from entering into 
a commercial treaty because she believed the en- 
forcement of navigation laws would put money in 
her merchants' pockets, and because she believed 
that, notwithstanding restrictions on West-Indian 
trade, she could secure and hold her commerce with 
the United States. She was, moreover, in no haste 
to deliver the western posts so long as their retention 
gave her traders opportunity to control the fur- 
trade. But withal it must be remembered that the 
states had done little to promote good feeHng. 
Their treatment of the loyalists after the peace was 
outrageous, while, in utter disregard of the treaty, 
they placed in one form or another impediments 
in, the way of the collection of British debts. Jay 
declared that there had not been a single day 
since the ratification of the treaty on which it had 
"not been violated ... by one or other of the 



io6 CONFEDERATION AND CONSTITUTION [177S 

States." * "I suspect," he said to Adams, in speak- 
ing of the disorder and lawlessness in America, "that 
our posterity will read the history of our last four 
years with much regret." 

Before the Revolution a large portion of the flour 
and fish exported from the United States found its 
best markets in the Mediterranean ports. ^ But now 
the Barbary powers felt at liberty to seize American 
vessels and imprison the seamen. A number of 
men were held for ransom and handsome prices 
demanded for their liberty. Agents were sent to 
make peace and to see about the succor of the 
prisoners, but accomplished nothing. Algiers had 
twenty-one captives, for whose release was demand- 
ed the sum of $59,496.^ America had no funds to 
spend in redeeming its citizens from slavery, and its 
statesmen could do no more than ponder on the 
possible effect of war. A Tripolitan ambassador 
appeared in London, and with him Adams had a 
series of remarkable interviews, the htmior of which 
appealed even to the serious mind of the American 
minister. ' ' His Excellency made many inquiries con- 
cerning America, the climate, soil, heat, and cold, etc., 
and observed, ' it is a very great country, but Tripoli 
is at war with ity He said '' that Turkey, Tripoli, 
Tunis, Algiers, and Morocco were the sovereigns 



* Jay's report, Secret Journals of Congress, October 13, 1786; 
Jay, Corresp. and Public Papers, III., 214. 
^ Am. State Papers, For. Rel., I., 104. 
' Am. State Papers (Wait's ed,, 181 7), X., 43. 



I79I] DIPLOMACY 107 

of the Mediterranean, and that no nation could 
navigate that sea without a treaty of peace with 
them." ^ The sum of 30,000 guineas was men- 
tioned as the price of a treaty, making for the four 
Barbary powers, if all accepted the terms, 120,000 
guineas. Jefferson went over from Paris to London, 
and in company with Adams had conferences with 
the stately Abdrahaman, who repeated his demand 
for 30,000 guineas, plus a little douceur of £3,000 for 
himself.^ A treaty was made with Morocco at the 
beginning of 1787; but the relations with the other 
Barbary states could not be arranged. America was 
too poor to pay and could not make up her mind 
to fight, and so this question, like others, awaited 
the establishment of a national government. 

All this, like everything else one touches during 
the dismal period, discloses the helplessness of the 
confederacy. The English at first were actually 
curious to know whether Congress or the states in- 
dividually had the right to negotiate,^ and until 
1 79 1, eight years after the peace, sent no minister to 
America ; Spain felt no fear save from the aggressive, 
ambitious spirit of the western settlers ; the Barbary 
powers found the taking of American seamen an 
easy but not a lucrative employment. 

* Dip. Corresp., i^Ss-iySg, II., 567 ; Adams, Works, VIIL, 374. 
.'Jay, Corresp. and Public Papers, III,, 197. 
^ Dip. Corresp., iy8j-i'/8p, I., 574. 



CHAPTER VII 

FOUNDING A COLONIAL SYSTEM 
(1783-1787) 

DURING the dreariest days of the Revolution, 
when it was often uncertain whether inde- 
pendence could be maintained, when British armies 
were occupying much of American territory, when 
Washington had not the troops or the equipment 
to beat the enemy back, there was much discussion 
concerning the ownership of the land beyond the 
mountains. For the ownership of the west was not 
only the source of diplomatic controversy and per- 
plexity; it was also between the states themselves 
a topic for prolonged dispute. There would seem 
to have been little haste about determining the 
ownership of the almost uninhabited wilderness ; but 
it is not strange that a nation which in less than 
a century was to reach out and occupy a continent 
and push its settlements three thousand miles be- 
yond the Appalachians should, at the beginning 
of its existence, be confronted with a land problem 
and find its earlier political organization complicated 
with disputes about territorial titles. 

The parties to this internal controversy were on 

108 







> I 



cedej^TtsT 



tsKdsK^a^ — (T^J^ NOT CEDED 
L*'!'" ADMITTED AS 

STATE OF KENTUCKY 
1792 



Nm 



lU^'C 



tifsf ? I CEDED 1790 / ,,'' I Raleik'llo^ ' 

^ N ,o li T Hj^:r:,c a b o l ^i ^a 



*■ ' ' V T- T IT \ 1 



If CEDED 1802\ 



toil \ 7=) T:sl ii V O-Ov 



^v^v_M-~-^j^-/^^^fj-------=s^ 



J/ 




BOHMAY 4 CO.,N.V. 



Longitude West from 82 "Greenwich 



STATE CLAOIS 

TO WESTERN LANDS 

1783- 1802 



SCALE OF MILES 



50, 100 200 30 

, .Treaty Liue of J ' 



1777] TERRITORIES 109 

one hand Congress, on the other hand the seven 
states — New York, Massachusetts, Connecticut, 
Virginia, North Carolina, South Carolina, and 
Georgia — which laid claim to this western coun- 
try. The other six states asserted either that 
Congress already had rightful authority or that 
Congress should be given it for the public good. 
The long debates over this subject in Congress 
and the state legislatures were important, because 
much more was involved than the mere question of 
ownership; the whole great problem of territorial 
expansion, of the management and organization of 
new communities beyond the limits of the old 
commonwealths, was finding solution. 

Fearing the strength and influence of the states 
which claimed the vast territory beyond the moun- 
tains, Maryland at an early day proposed that 
Congress should have the right to **fix the western 
boundary of such states as claim to the Missisippi 
or south sea; and lay out the land beyond the 
boundary so ascertained into separate and inde- 
pendent states from time to time as the numbers 
and circumstances of the people thereof may re- 
quire." ^ This was a proposition of immense im- 
portance, for Maryland refused to agree to the 
Articles of Confederation so long as other states 
asserted their claims to the wide region beyond the 

^Journals of Congress, October 15, 1777; Adams, Maryland's 
Influence upon Land Cessions {Johns Hopkins University Studies, 
III., No. I.). 22. 

VOL. X. — 9 



no CONFEDERATION AND CONSTITUTION [1780 

moiintains. Early in 1780 New York' expressed 
a readiness to give up her claims, which at the best 
were vague ; and Congress the next September ^ urged 
all the states to take like action. The next month 
Congress passed a momentous resolution declaring 
that the lands ceded or relinquished to the United 
States by any state should be disposed of for the 
common benefit of the United States and be settled 
and formed into distinct republican states which 
should become "members of the federal union, and 
have the same rights of sovereignty, freedom and 
independence, as the other states." ^ 

Connecticut, desiring to promote the liberty and 
independence of the "rising Empire," next promised 
a cession."* Then Virginia, whose claim was based 
not only on her old charter but on the military 
achievements of George Rogers Clark, expressed a 
willingness to yield title^ to all the territory north 
of the Ohio. Although Virginia's cession was 
coupled with conditions that were not acceptable to 
Congress, Maryland, expressing her confidence in 
the justice of her sister states, finally entered into 
the Confederation. Her delegates in Congress signed 
the Articles March i, 1781.® Though not all the 

* Journals of Congress, March i, 1781. 
^ Ibid., September 6, 1780. 

^ Ibid., October 10, 1780. 

* Ibid., October 12, 1780. See Regents of University of N. Y., 
Report on Boundaries of N. Y. (1874), I., 157. 

* Journals of Congress, September 13, 1783. 
^Ibid., February 12, 1781. 



1786] TERRITORIES in 

states had as yet declared their readiness to give 
up their claims in full, such a surrender was sure 
to come, and the Confederation was to have- title 
to an imperial domain beyond the mountains. 
Moreover, the principle had won acceptance that the 
settlers in the west should not be held permanently 
in colonial subjection to the mother-states of the 
seaboard, but should from time to time be formed 
into self-governing commonwealths. 

We need not trace in detail the history of the ces- 
sions that were formally made after the Articles were 
signed. Acrimonious discussion did not end with 
the signing of the Articles, but step by step the 
difficulties were cleared away. In 1782^ Congress 
accepted the New York cession of all territory west 
of a meridian running through the most w^estern 
bend or inclination of Lake Ontario. Virginia 
ceded freely all claim to the territory north and 
west of the Ohio, stipulating substantially in the 
language of Congress that the territory so ceded 
should be laid out and formed into ''distinct re- 
publican states, and admitted members of the foe- 
deral union, having the same rights of sovereignty, 
freedom, and independence, as the other states."^ 
April, 1785, the delegates in Congress from Massa- 
chusetts executed a deed of cession^ of all claims 
west of New York; and in 1786 Massachusetts came 

^Journals of Congress, October 29, 1782. 

' Hening, Statutes, XL, 326-328. 

* Journals of Cong^ress, April 18, 1785. 



112 CONFEDERATION AND CONSTITUTION [1782 

to an agreement with New York ceding jurisdiction 
but retaining ownership in western New York. Con- 
necticut, sore and wrathful over a decision of a court 
of arbitration in 1782 denying her claim to northern 
Pennsylvania, adhered to her western claims till 
1786, and then gave up all save a strip known as 
the Western Reserve,* running from the western 
boundary of Pennsylvania westward one hundred 
and twenty miles along the south shore of Lake 
Erie, a valuable piece of fertile land containing 
three million two hundred and fifty thousand acres. 
In 1800 the jurisdiction over the Western Reserve 
was surrendered to the United States.^ 

With the exception of the Western Reserve, 
Congress had, therefore, by 1786, full title to all the 
land north of the Ohio. South of the Ohio the sea- 
board states, basing their claims on their old 
charters, still asserted ownership westward as 
far as the Mississippi. But Congress now owned 
many millions of acres, and this ownership con- 
stituted a common interest and a tangible indica- 
tion of the unity of the nation. It remained for 
Congress to work out a plan of settlement and to 
carry out the principles which it had already an- 
nounced. 

Even before the Revolution there was much 
interest in the settlement of the west; there was a 

' Journals of Congress, September 14, 1786. 
' Report at length by John Marshall, for a committee of Con- 
gress, in Am. State Papers, Public Lands, I., 94-98. 



i8oo] TERRITORIES 113 

belief that the country would be rapidly peopled 
and that much revenue could be derived from the 
sale of lands. Impressed with the value of the 
western country, Congress offered bounties in land 
to those who would enlist * in the war, and this, too, 
before the states consented to give up their claims 
to the territory beyond the mountains. When the 
Confederation was completed and the states began 
to make their deeds of cession, the country north 
of the Ohio was practically unoccupied by settlers 
from the older states ; but as the war neared its end 
there was renewed interest in plans for colonization 
and renewed hope that by one mode or another the 
western lands could be disposed of for paying the 
debts of the Confederation and replenishing its 
empty coffers.^ 

The first plan of any importance for the organiza- 
tion and settlement of the northwest was drawn 
up by Timothy Pickering and other army officers 
at Newburg as early as April, 1783. The idea was 
to form a community on the frontier capable of 
defending itself against the Indians, and to give 
Congress the opportunity of fulfilling its promises 
of bounties to the officers and soldiers of the army. 
The plan seems to have contemplated nothing less 
than the formation of a state beyond the Ohi(3, the 
adoption of a constitution before settlement, the 
total exclusion of slavery from the limits of the 

* Cutler, Cutler, I., 122. 

' Barrett, Evol. of Ord. of 1787, 4, 5, with references. 



ti4 CONFEDERATION AND CONSTItUf ION [17^3 

commonwealth, and its immediate admission into 
the Union;* but the petition sent to Congress, judg- 
ing by Rufus Putnam's draught, spoke of marking 
out a "tract or teritory sutable to form a distinct 
goverment (or CoUoney of the United States) — i'n 
time to be admited, one of the Confedirated States 
of America.'' ^ Little is known of the project be- 
yond the general purposes of its framers, who, for 
some reason, apparently made no great effort to 
carry out their plans. Soon afterward (June, 1783) 
an ordinance for the organization of the west was in- 
troduced into Congress, but nothing was done with 
it, and though it contained some significant pro- 
visions it is now of interest chiefly because it was 
the first scheme for western colonization introduced 
into Congress and because it shows that ideas of 
importance were taking shape. 

More definite action was taken in March, 1784,^ 
when by Virginia's cession Congress held unques- 
tioned title to at least a large portion of the lands 
north of the Ohio. An ordinance draughted by Jef- 
ferson was brought before Congress: the western 
lands "ceded or to be ceded" were by this plan to 
be divided into states ; besides a strip just west of 
Pennsylvania, the territory covered was all the land 
between the meridian running through the western 
cape of the mouth of the Great Kanawha on the east 

•Pickering, Pickering, I., 457, 546-549; Cutler, Cutler, L, 
159-174; Buell, Memoirs of Putnam, 215. ' Ibid. 

^ Cutler, Cutler, II., 407 et seq. ; St. Clair Papers, II., 603 et seq. 



1784] TERRITORIES 115 

and the Mississippi on the west, and extending from 
the thirty-first parallel to the international boundary 
at the north. A second meridian running through 
the lowest point of the Falls of the Ohio and several 
east and west lines were to divide the whole area into 
sixteen different states; or if the framers intended, 
as there is some reason for believing, that South 
Carolina and Georgia should extend westward to the 
second meridian, into fourteen states/ 

By this plan the settlers were not immediately to 
form a state and enter the Union, as the proposers 
of the earlier plan may have desired; they were, 
.''either on their own petition, or on the order of 
Congress," to meet together for the purpose of estab- 
lishing "a temporary government," and when any 
state had twenty thousand free inhabitants it was 
to receive from Congress authority to establish a per- 
manent constitution and government. Not until a 
state should have as many free inhabitants as should 
be at the time contained in "the least numerous of 
the thirteen original States" was it to have the 
right to be admitted into the Union. Thus we see 
that by the spring of 1784 there had been brought 
forward the two essential ideas of the American 
colonial system: temporary government with a 
large measure of self-government for the colony ; and 
the ultimate admission of the colony into the Union 
on terms of equality with the older members. 

* Cutler, Cutler, II., 407 et seq; Staples, R. I. in the Cont, 
Cong., 479. 



ii6 CONFEDERATION AND CONSTITUTION [1784 

In Jefferson's plan, as first introduced, it was 
declared that in all this western country "after the 
year 1800 of the Christian aera there shall be neither 
slavery nor involuntary servitude . . . otherwise than 
in punishment of crimes, whereof the party shall 
have been duly convicted to have been personally 
guilty." The restriction, it should be noticed, was 
evidently intended to cover not alone the terri- 
tory north of the Ohio but the territory south as 
well.* 

The southern states, however, from whose older 
portions people were already moving into the in- 
terior beyond the mountains, were not ready to 
dedicate the west to freedom. When the Ordinance 
was under discussion a delegate from North Carolina 
moved to strike out the antislavery clause. Jef- 
ferson in his own delegation voted for the retention 
of the provision, but he was overruled by his col- 
leagues. The vote of North Carolina was divided. 
Virginia, South Carolina, and Maryland voted to 
strike out the clause, and though six northern states 
voted for its retention, they were defeated, inasmuch 
as seven states were needed to establish the law.^ 

Without this important provision, therefore, and 
also without a list of high - flown names for the 
states which Jefferson had suggested — Metropo- 
tamia, Assenisipia, Polypotamia, Pelisipia, etc. — 
and with slight changes in the boundaries of the 

* For first draught of the report, see Randall, Jefferson, I., 
397-399. ^Journals of Congress, April 19, 17S4. 



PKOPOSEI) DIVISION 

OF WESTERN I>ANDS 

"CEDED OR TO BE CEDED" 

Aeeordiiig to Ordinance of 
April, 33, 1?84 

SCALE OF MILES 




1784] TERRITORIES 117 

proposed states which apparently reduced their 
number, the Ordinance was passed^ April 23, 1784. 
It never went into effect ; but it has its significance 
as one of the early attempts to organize the west, 
and perhaps still more because of the effort to 
exclude slavery. 

Some of the northern men were not willing to 
rest content with the decision of Congress. Picker- 
ing called the attention of Rufus King, of Massachu- 
setts, to the omission of the antislavery clause from 
the Ordinance of 1784. **To suffer," he said, **the 
continuance of slaves till they can gradually be 
emancipated, in States already overrun with them, 
may be pardonable, because unavoidable without 
hazarding greater evils; but to introduce them into 
countries where none now exist — countries which 
have been talked of, which we have boasted of, as 
asylums to the oppressed of the earth — can never 
be forgiven." ^ 

Prompted by Pickering's letter. King introduced 
an antislavery resolution in Congress. The res- 
olution was referred to a committee of which 
King was chairman, which on April 26 reported 
a resolution declaring that after the year 1800 
there should be no slavery in the territory covered 
by the Ordinance of 1784, but that fugitives from 
service should not, by escaping into the new states, 
obtain their freedom. These propositions were not 

^Journal of Congress, April 23, 1784. 
'Pickering, Pickering, I., 510, 



ii8 CONFEDERATION AND CONSTITUTION [1784 

made into law; they peacefully slept on the secre- 
tary's docket, like so many hundreds of other res- 
olutions, but they deserve attention because there 
seems to be immediate connection between them 
and the final regulations governing the northwest/ 
A dread of western influence, a fear that the new 
states of the interior would imperil the interests of 
the old states on the coast, now arose to complicate 
the situation and make the task of organization 
more difficult. Monroe, then serving as a member 
in Congress, took a trip into the west, and became 
convinced, after a rapid and superficial examination, 
that large portions of the country were so unattrac- 
tive and valueless that they would not for ages 
contain a sufficient number of inhabitants to en- 
title them to membership in the Confederation. ** A 
great part of the territory," he declared, "is miser- 
ably poor, especially that near lakes Michigan and 
Erie and that upon the Mississippi and the Illinois 
consists of extensive plains which have not had 
from appearances and will not have a single bush 
on them, for ages." ^ In light of these supposed 
facts he advocated reducing the number of new 
states. And this proposition, or at least the sen- 
timent it represented, had influence in determining 
the number of commonwealths ultimately formed 
north of the Ohio. 

* Pickering, Pickering, I., 510; Journals of Congress, March 
16, 1785; Barrett, Evol. of Ord. of 1787, 28. 
^Monroe, Writings (Hamilton's ed.), I., 117. 



1786] TERRITORIES ii^ 

The subject of the organization of the west came 
up time and again for consideration in f^ongress in 
the two years that followed the adoption of the 
Ordinance of 1784; but decision was delayed, though 
it is apparent that the final ideas were forming. 
The ultimate step was hastened and the complete 
plan of organization was determined on, not be- 
cause Congress was ready to act on general prin- 
ciples, but because there was need of satisfying 
the demands of men who were intent on a scheme for 
western settlement, and wished their status de- 
termined before embarking on a financial enterprise. 

The Ohio Compan}^ made up of New England men, 
was formed in Boston, March 3, 1786. Its directors 
were General Rufus Putnam, who had served 
creditably in the Revolution, General Samuel H. 
Parsons, also a Revolutionary officer, and lastly 
Manasseh Cutler, a doctor of divinity, who, with a 
penchant for botany and a love for natural philos- 
ophy, had also an aptitude for business and was 
not above turning an honest penny in a land- 
speculation which bade fair to be remunerative and 
interesting. This company was organized for pur- 
chasing land in the west and promoting settlement.^ 
The New-Englanders were already moving into the 
"northern frozen deserts," Cutler said, and to turn 
their faces to the new west it was necessary only 
to tell them of the temperate climate and fertile 
land of the Ohio country. 

* Articles of agreement, in Cutler, Cutler, I., 181-184. 



I20 CONFEDERATION AND CONSTITUTION [1787 

In the spring and early summer of 1787 Congress 
at various times discussed a draught of a new ordi- 
nance for the western territory, but, moving with 
its customary circumspection, it had reached no 
results, when Dr. Manasseh Cutler appeared in New 
York, where Congress was sitting, and put up at 
the hostelry of the "Plow and Harrow" in the 
Bowery (July 5).* Cutler came commissioned to 
buy land, and the simple proposition to that effect 
must have sounded sweet in the ears of Congress, 
even though the purchase was to be made, not in 
hard cash, but in certificates of public indebtedness. 
Probably the attractive prospect of disposing of 
land hastened the action of Congress, for on July 
13 was passed the Ordinance of 1787, which, because 
of its wise provisions and liberal terms, has justly 
been considered one of the most important docu- 
ments in our history. It was the consummation of 
long discussion and much effort, and laid down 
a series of fundamental principles of great signifi- 
cance in building up the Union west of the moun- 
tains. After providing that for the purpose of 
temporary government there should be at first but 
one district northwest of the Ohio, the Ordinance 
provided for the liberal descent and conveyance of 
estates. For the temporary government there were 
to be a governor, a secretary, and three judges 
appointed by Congress ; the governor and judges were 
to have authority to adopt and publish such laws 

' Cutler, Cutler, I., 228. 



1787] TERRITORIES 121 

of the original states as they thought suited to the 
needs of the district. As soon as there should be 
five thousand free male inhabitants of full age, a 
general assembly might be brought into being, to 
consist of the governor, a legislative council, and a 
house of representatives with power to legislate. 

Then followed in the Ordinance a series of funda- 
mental declarations similar to the bills of rights that 
had been framed as part of the constitutions of some 
of the states, granting freedom of religious worship, 
assuring the benefits of habeas corpus, trial by jury, 
proportionate representation, and the conduct of 
judicial proceedings according to the common law. 
It declared that no man should be deprived of his 
liberty or property except by the judgment of his 
peers or the law of the land ; that full compensation 
should be made for property taken or services de- 
manded by the public ; that no law ought ever to be 
made which would interfere with or affect private 
contracts that had been previously formed; and, in 
happily chosen words, that, as religion, morality, 
and knowledge are necessary to good government 
and the happiness of mankind, schools and the 
means of education should forever be encouraged. 
Not less than three nor more than five states were 
to be organized within the territory, and when any 
state had a free population of 60,000 it was to be 
admitted into the Union on terms of equality with 
the old states. The most famous, though possibly 
not the most important clause of the Ordinance, 



122 CONFEDERATION AND CONSTITUTION [1787 

was one excluding slavery: "There shall be neither 
slavery nor involuntary servitude in the said terri- 
tory, otherwise than in the punishment of crimes, 
whereof the party shall have been duly convicted." 
Provision was made, however, for the reclamation 
and return of any person escaping into the terri- 
tory from whom labor or service was "lawfully 
claimed in any one of the original states." 

The Ordinance was a great state paper. It is true 
that, even had it not been framed, slavery could 
probably not have gained a permanent footing in 
the northwest. But it prevented the introduction 
of slavery in early years when settlers were moving 
into the region, it assured the development of the 
northwestern states unembarrassed by the slavery 
issue, and, not less important than all else, it stated 
a principle and established a precedent. There was 
value, too, in proclaiming in simple, straightforward 
language the fundamental principles of civil liberty 
and sound maxims concerning education and re- 
ligion. By the passage of the Ordinance, Congress 
fulfilled its earlier promise, that, if the western lands 
were ceded, free republican states would be formed. 
By providing for temporary government and the 
ultimate admission of the states it laid the founda- 
tions of the American territorial system. 



CHAPTER VIII 

FOUNDING OF NEW COMMONWEALTHS 
(1787-1788) 

WHEN the Ordinance was passed, eighteen 
delegates were in attendance in Congress, rep- 
resenting- eight states — New York, Massachusetts, 
New Jersey, Delaware, Virginia, North Carolina, 
South Carolina, Georgia — five of them south of 
Mason and Dixon's line, yet there was but one dis- 
senting vote, and that came from Abraham Yates, of 
New York. Nathan Dane, of Massachusetts, had 
expected opposition to the antislavery clause, and 
he added it almost at the last moment because he 
found the southern delegates favorably disposed.^ 
But this does not mean that the southerners neces- 
sarily believed at that time in excluding slaves 
from all the western land. The Ordinance did not 
refer to the land south of the Ohio, and in con- 
sidering the northwest the south was in part in- 
fluenced by political motives, in part by industrial 
and commercial considerations. Grayson, of Vir- 
ginia, who was himself an opponent of slavery ex- 
tension, wrote to Monroe that "the clause respecting 

* King, Life and Corresp. of King, I., 290. 
123 



124 CONFEDERATION AND CONSTITUTION [1787 

slavery was agreed to by the southern members for 
the purpose of preventing tobacco and indigo from 
being made on the northwest side of the Ohio, as 
well as for several other political reasons." * 

Concerning the authorship of this important 
document there has been much discussion. On 
this interesting question there seems to have been 
little comment at the time, for the Ordinance was 
passed by a moribund Congress, from which most 
of the talent was already withdrawn. Credit has 
at times been ascribed to Cutler, and one might 
expect to find in his detailed journal full informa- 
tion on the whole subject. He took a lively inter- 
est in his journey to New York, but he describes 
in his diary everything but the one thing which 
we should like to know; he tells of wine dinners, 
of pleasant companions, of entertaining and well- 
dressed young women, but of the excellences of this 
fundamental Ordinance he says nothing at all. He 
did propose some amendments to the report pending 
in Congress;^ he did meet the committee in charge;^ 
and he may well have advocated the insertion of the 
fundamental maxims of liberty, for he well knew 
the monetary value of having it well understood 
that certain principles of freedom were to obtain 
in the western country; but his diary would lead 
one to think that it was the shrewd bargain for 

• Bancroft, Hist, of the Const., II., 437. 

•Cutler, Cutler, I., 293. 

■ Poole, in No. Am. Rev., CXXII,, 254. 



1787] NEW STATES 125 

the purchase of land that filled his mind and 
thoughts. 

Nathan Dane, a member of Congress and of the 
committee, claimed in his later years the credit of 
the authorship, and his case is fairly clear. He may 
have been influenced by Cutler ; he was surely in- 
fluenced by other men, for a large part of the Ordi- 
nance was a condensation of portions of the Massa- 
chusetts constitution of 1780;* but he, more than 
any other man, draughted the Ordinance of 1787,^ 
and his name should not be forgotten in the list 
of makers of the American nation. Credit should 
also be given to Rufus King, who, though not in 
Congress when the Ordinance was passed, was at 
least responsible in part for the most famous clause 
in it, the clause prohibiting slavery.^ But of course, 
when all is said, the credit of authorship cannot 
be given to two or three men ; the significance of the 
Ordinance lies in the fact that it was the result of a 
long effort to settle the western question. In many 
of its essentials it was — ^like other great historical 
documents momentous in human annals — the prod- 
uct of years. It crystallized the principles of colo- 
nial organization about which men had been dis- 
puting for a generation. Even the slavery clause 
had been considered and discussed more than once 



• Barrett, Evol. of Ord. of ijSy, 55 et seq. 
' King, Ohio (ed. of 1903) , 422 ; Dunn, Indiana, 205-210; King, 
Life and Carres p. of King, I., chap. xv. 
' Ibid.. 286 et seq. 

VOL. X. — 10 



126 CONFEDERATION AND CONSTITUTION [1785 

before the stimmer days of 1787 when Dr. Cutler 
appeared on the scene and spoke of buying milHons 
of acres of wild land on the Ohio. 

Dr. Cutler proved a capable and efficient agent. 
A few days after the passing of the Ordinance/ Con- 
gress authorized the sale of the western land on 
terms that were acceptable to the Ohio Company. 
He was also instrumental in making a purchase for 
the Scioto Company, a land-grabbing combination 
which has left a malodorous history behind it. The 
whole bargain constituted, said Cutler, ''the great- 
est private contract ever made in America." ' 

Preparations were now made on an extensive 
scale for the settlement of the northwest. Arthur 
St. Clair was appointed by Congress governor of the 
new territory, which stretched from the western 
limits of Pennsylvania to the Mississippi and from 
the Ohio northward to the international boundary. 
In the year 1788 a body of New-Englanders made 
their way over the mountains, and with large flat- 
boats floated down the Ohio and founded the town 
of Marietta at the mouth of the Muskingum. "No 
colony in America," said Washington, "was ever set- 
tled under such favorable auspices. . . . Information, 
property, and strength, will be its characteristics." ^ 

In the course of the legislation concerning the 
western territory, two or three important steps were 

* Journals of Congress (ed. of 1823), IV., App. 17 et seq. 

'Cutler, Cutler, I., 326. 

•Washington, Writings (Ford's ed.), XL, 28a. 



1738] NEW STATES 127 

taken that we have not yet referred to. In 1785 
Congress passed an ordinance for ascertaining the 
mode of disposing of lands in the western territory/ 
It contained a number of significant provisions, and 
was the beginning of the admirably complete and 
simple land system of the United States, provid- 
ing for the establishment of townships six mile^ 
square, each of which should be divided into thirty- 
six sections one mile square. Moreover, the act 
provided that the lot number sixteen of every 
township should be reserved for the maintenance of 
public schools within the township. This provision 
was included in the arrangement made with the 
Ohio Company, and it was also expressly stipulated 
that the company should set aside two townships 
for a university and one section in every township 
for the support of religion.^ This was the foundation 
for the broad policy of popular education and the 
beginning of the free school and university system 
of the west. Doubtless we see here the New-Eng- 
land idea, and one that appealed to the business 
instinct of the men who were forming the new 
settlement; the formation of townships and the 
grant of land for public purposes would furnish in- 
ducements for '' neighborhoods of the same religious 
sentiments to confederate for the purpose of pur- 
chasing and settling together." ^ 

* Journals of Congress, May 20, 1785. 

' Ibid. (ed. of 1823), IV., App.; Cutler, Cutler, I., 319. 

' Bancroft, Hisi. of the Const., I., App., 425. 



128 CONFEDERATION AND CONSTITUTION [1769 

We have thus seen what preparations were made 
for building new commonwealths north of the Ohio: 
before settlements were made an elaborate plan of 
colonial organization was devised, providing for 
temporary government and for ultimate admission 
into the Union; a definite grant of territory was 
secured from Congress, and in accordance with well- 
matured arrangements a body of settlers left their 
eastern homes and moved over the mountains to 
form new settlements. The early method of build- 
ing up the southwest was much different from this: 
there was no waiting for Congressional authority; 
the extension of the border depended on independent 
enterprise. A few bold hunters and restless ad- 
venturers pushed on into the wilderness with the 
instinct of the hopeful, land -loving, adventurous 
American frontiersman, and built palisades and 
clustering log-houses in the forests of Tennessee and 
Kentucky. The movement was spontaneous and 
natural, and did not rest on prearranged system or 
harmonize with any logical notion of colonial es- 
tablishment. The pioneer, relying on his rifle as 
his title-deed, moved with his companions on into 
the unoccupied forests, prepared to hew his way 
to comfort and prosperity, and to build up civil 
government as the needs disclosed themselves. 

The topography of the country influenced in con- 
siderable measure the history of state-making south 
of the Ohio. While the framers of the ordinances 
in Congress were marking out states by parallels 



17S4] NEW STATES 129 

and meridians, the western settler was feeling the 
inevitable force of geography. There was a move- 
ment to form a new state in the western portion of 
Pennsylvania and Virginia, a movement that was in 
part made good nearly a century later by the division 
of the Old Dominion. At an early day the settlers 
in this region, "separated by a vast, extensive and 
almost impassible Tract of Mountains, by Nature 
itself formed and pointed out as a Boundary be- 
tween this Country and those below it," sought to 
be established as " a sister colony and fourteenth 
province of the American Confederacy." * There 
was, as we shall see, a movement to establish an 
independent state in what is now eastern Tennessee 
but was then western North Carolina, a section 
separated from the older state by the Appalachian 
range and different in its make-up from the lower 
land of western Tennessee. The frontiersman who 
turned his face to the great "western world," to use 
his own phrase, must have felt, even without words, 
that the west, separated by the mountain - chain 
from the Atlantic basin, could not long remain 
subservient to the older commonwealths of the 
coast. And yet at the same time he felt the unity 
of the great valley.^ In the coming years, in spite 
of strong objection to restraint and in spite of an 
independent and buoyant spirit, the western man 

* Document in Crumrine, Hist, of Washington County, Pa., 187 ; 
quoted in Turner, "Western State-Making in the Revolutionary 
Era," in Am. Hist. Review, I., 83., ' Ibid., 75. 



130 CONFEDERATION AND CONSTITUTION [1768 

was on the whole loyal to the Union and national 
in his sympathies. 

The settlement of the southwest began even before 
the Revolution. The region was not won simply by 
the bold diplomacy of our commissioners at Paris. 
While the war was in progress little bands of set- 
tlers, heedless of peril and careless of privation, were 
step by step moving on into the western wilderness, 
building homes by the side of the rivers that flowed 
westward and southward to the gulf. In all the 
negotiations, bickerings, and conspiracies that oc- 
cupied the minds of so many men — Spaniards, 
Frenchmen, and Englishmen alike — for the twenty- 
five years that ensued between the French treaty of 
alliance in 1778 and the treaty of 1803, which 
brought us Louisiana, one fact could not be neglect- 
ed : the western pioneer with his rifle and his powder- 
horn had built blockhouses and palisades in the 
heart of the Mississippi Valley. The perils that 
were encountered, the sufferings that were borne by 
these winners of the west, form an essential and vital 
part of American history. 

One is at a loss to understand the restless energy 
with which these rough woodsmen pushed forward 
to make new homes in the solitudes of Kentucky 
and Tennessee. For years together the Indians 
were hostile; every little settlement had its tale of 
horror, of men murdered at their work, of children 
carried into captivity, of the plowman shot in the 
field or the harvestman as he stored his grain, of 



i8o3] NEW STATES 131 

sudden attack and spirited defence, of scalping and 
torture, of ceaseless, hourly, unremitting danger. 
And yet, in spite of suffering and disaster, men 
that had seen their homes burned, their children 
murdered before their eyes, went on quietly with 
their work.^ Clearing was added to clearing ; houses 
were built farther in the wilderness ; little communi- 
ties of self-reliant men and women sprang into 
existence in the primeval forests of the great valley. 
These woodsmen were the vanguard of English 
civilization; these men of the "back country" were 
in the forefront of American achievement. 

Soon after the treaty of Fort Stanwix (1768), by 
which the Iroquois gave up their claim to lands 
between the Tennessee and the Ohio, Daniel Boone 
was on his way 'Mn quest of the country of Ken- 
tucke"; and in 1770 a settlement was made on 
the Watauga, a head-water of the Tennessee River, 
imder the leadership of James Robertson, a man 
of rare force of character and boundless energy. 
In 1772 he was joined by John Sevier, who was 
''well fitted for this wilderness work," strong yet 
jovial, at once an Indian fighter, a statesman, and a 
gentleman. These two men were the founders of 
Tennessee. Their settlement was in the attractive 
upland valley bounded on the west by the Cum- 
berland Mountains, on the east by the ridge of the 
Alleghenies, which separated them from the parent 

* See the letter of James Robertson, in Am. Hist. Mag. (Nash- 
ville, 1896), I., 83. 



132 CONFEDERATION AND CONSTITUTION [1772 

state. In their isolation the settlers soon needed a 
government, and they proceeded to form one/ One 
can find no more striking fact in American history, 
nor one more typical, than the simple ease with 
which these frontiersmen on the banks of the western 
waters, on the threshold of the central valley of the 
continent, finding themselves beyond the reach of 
eastern law, formed an association and exercised 
the rights and privileges of self-government. Under 
their articles of association the settlers seem to have 
lived until taken under the government of North 
Carolina soon after the outbreak of the Revolution 
(1776). The land, however, did not belong nat- 
urally to the coast but to the Mississippi region, 
and in later years became part of Tennessee. 

The Watauga settlers, though separated by miles 
of forest from their neighbors east of the mountains, 
were not altogether cut off from the older regions, 
but ere long settlements were made in the heart 
of the more distant wilderness. Following Boone's 
trace, the famous Wilderness road over Cimiberland 
Gap and on into the north and west, hardy, coura- 
geous woodsmen with their families made their way 
to found new homes in Kentucky. In 1775 Boones- 
borough was established, a lonely island in the 
great forest, two hundred miles from the eastern set- 
tlements. Blockhouses were likewise built and land 
was cleared at Nashborough, now Nashville, on the 

* Ramsey, Annals of Tenn., chap, ii.; Haywood, CivU and Pol. 
Hist, of Tenn. (ed. of 1823), 41. 



1784] NEW STATES 133 

broad bend of the Cumberland (1780). Here again 
the foundation of government was not, as at the 
north, a document drawn up in the older settle- 
ments by legislative authority; the settlers took 
nothing with them but their courage and a de- 
termination to build houses in the wilderness. 
When they needed laws for protection, as a ''tem- 
porary method of restraining the licentious," they 
drew up a compact, not intending to establish an 
independent state, but, till recognized and cared 
for by Carolina, to supply for themselves "the 
blessings flowing from a just and equitable govern- 
ment."* 

Thus before the end of the Revolution permanent 
settlements were established beyond the mountains, 
although as yet no separate state was formed, for the 
eastern states still claimed dominion ; there was ev- 
er3rwhere in these western settlements strong self- 
reliance and democratic self-government. It could 
be only a short time before independent common- 
wealths would be established. 

The most famous movement for the establish- 
ment of a separate state was made by the settlers 
near the head-waters of the Tennessee shortly after 
the Revolution was ended. Separated from North 
Carolina by the mountains, this region, as we have 
said, had a geographic individuality of its own. 
In 1784 North Carolina ceded her western lands 

* Ramsey, Annals of Tenn., I., 194. Cf. the compact in Put- 
nam, Middl? Tenn., 94. 



134 CONFEDERATION AND CONSTITUTION [1784 

to Congress, with a proviso, however, that until 
Congress accepted the cession the sovereignty 
should remain in the state, and two years were 
allowed for the acceptance of the cession. North 
Carolina had for some time taken no tender interest 
in the transmontane settlements. With that com- 
plaisant superiority which often marks the man 
who has stayed at home when speaking of those who 
have had the enterprise to move, some of the men 
of the old state had declared the pioneers were 
nothing but the " off-scourings of the earth" * and 
"fugatives from justice." 

The westerners felt themselves abandoned, but 
were not accustomed to shed tears because left to 
their own devices. They probably supposed that 
Congress had practically assured them statehood by 
passing the Ordinance of 1784, and they proceeded 
themselves to organize a state. " If we should be so 
happy," they said, "as to have a separate govern- 
ment, vast numbers from different quarters, with a 
little encouragement from the public, would fill up 
our frontier, which would strengthen us, improve 
agriculture, perfect manufactures, encourage litera- 
ture and every thing truly laudable. The seat of 
government being among ourselves, would evidently 
tend, not only to keep a circulating mediimi in gold 
and silver among us, but draw it from many in- 

* Quoted in a statement of their case by the Franklin general 
assembly, 1785. See Alden, "The State of Franklin," in Am. 
Hist. Review, VIII., 277; Pennsylvania Packet, May 21, 1785. 



^•1^1^: 




1788] NEW STATES 135 

dividuals living in other states, who claim large 
quantities of lands that would lie in the bounds of 
the new state." ^ This simple statement, full of 
quaint economy and charged with the enthusiasm 
and idealism of the frontiersmen, brings before us 
much that was characteristic of the hopeful west. 
No wonder, with such prospect of monetary and 
literary improvement, they did not hesitate to es- 
tablish an independent commonwealth. 

Before final action was taken, North Carolina 
withdrew her act of cession. In spite of this, and 
though persistence meant rebellion, the western 
men drew up a constitution modelled after that of 
the parent state (1785), and, adopting the name 
of Franklin, sought recognition from the Congress 
of the Confederation. One of their first acts was 
to provide for taxes and to show, if not the need 
of literature and all things laudable, at least the 
primitive condition of society and the absence of 
gold and silver, whose presence was so much de- 
sired. Taxes were made payable in otter, deer, and 
beaver skins,^ in well-cured bacon, in clean tallow, 
in distilled rye whiskey, in good peach or apple 
brandy, and in like useful and cheering commodities. 
North Carolina protested against this separate or- 
ganization; Congress of course did nothing; and 
Franklin led a troubled life for about four years, 
giving up its pretence of independence in 1788. 

* Ramsey, Annals of Tenn., 288, 289. 
' Ibid., 297. 



136 CONFEDERATION AND CONSTITUTION [1774 

In Kentucky, then a district of Virginia, there 
was throughout this time considerable restless- 
ness and discontent. Some of the settlers, with 
Wilkinson at their head, were engaged in some sort 
of a mysterious intrigue, disreputable at the best, 
with the Spanish authorities in New Orleans. Others 
desired a separation from Virginia and admission 
into the Union as a state. Nothing definite was 
accomplished, however, before the end of the period 
of the Confederation. June i, 1792, Kentucky en- 
tered the Union. 

Despite this restlessness of the frontiersmen, and 
despite the plottings of ambitious schemers like the 
unspeakable Wilkinson, the story of early western 
settlements is a story of American achievement. 
During the Revolutionary era the American people 
had expanded and laid the foundations for new 
commonwealths in the valley of the Mississippi, 
which offered homes for countless thousands; the 
Congress of the Confederation had at last become 
possessed of property, and, incorrigibly incompetent 
in all other directions, succeeded in drawing up a 
wise and noble plan for colonial expansion. The 
settlers themselves, who were now pouring over 
the mountains, were showing remarkable political 
sagacity. Rough, uncouth, lawless, as many of the 
adventurers were, the great body of them were 
home-seekers, bent on improving their fortunes, 
and they gave evidence withal of a native instinct 
for government and order. Unlovely as was the 



1792] NEW STATES 137 

raw frontier in some of its aspects, there was no 
danger that these enterprising pioneers would found 
hopeless, forlorn settlements in the wilderness; the 
history of American achievement in the Mississippi 
Valley was to be different from the French or 
Spanish. Only when the importance of this move- 
ment is grasped do we see how much the Americans 
accomplished in the eventful years from i774toi788: 
they won their independence from Britain, began 
with astounding courage and zeal the occupation 
of the ''western world," worked out the principles 
of territorial organization, and, almost without 
knowing it themselves, prepared the outlines of a 
system which assured the facile extension of their 
power from the Atlantic coast across the continent. 



CHAPTER IX 

PAPER MONEY 
(1781-17S8) 

ALL through the period of which we have been 
r\ speaking, the monetary conditions of the coun- 
try were in confusion. There were so many dif- 
ferent kinds of money in circulation that to calculate 
the value of any piece was a serious arithmetical 
problem. There were moidores, doubloons, pistoles, 
gold Johanneses, English and French crowns, Eng- 
lish guineas, and Spanish dollars. The standard 
in transactions with Great Britain was the pound 
sterling, but the coins most commonly used were 
the Spanish milled dollars — Captain Flint's "pieces 
of eight." In such a state of disorder and de- 
preciation was the currency of the times, and so 
much did terms differ from state to state, that the 
dollar was worth six shillings in New England and 
Virginia, eight shillings in New York and North 
Carolina, seven shillings sixpence in Pennsylvania, 
five shillings in Georgia, and thirty-two shillings 
sixpence in South Carolina.* 

* Sparks, Gouverneur Morris, I., 274; Sparks, Dip. Corresp, 
138 



1786] PAPER MONEY 139 

To make matters worse, counterfeiting was much 
practised, so commonly, in fact, that the wary 
trader might well have taken almost as much time 
for testing his money as for selling his goods. *' En- 
closed are one hundred Dollars of new Emission 
Money," wrote Gerry to King in 1 785, "which Colonel 
Steward desired me to have exchanged for Specie. 
Pray inform him they are all counterfeit."^ Good 
coin, moreover, was too valuable and rare to be al- 
lowed to circulate unmutilated. Clipping and shear- 
ing were so commonly practised that, as Washington 
complained, if an end were not put to the business 
a pistareen would be converted ''into five quarters " 
and a man be forced to " travel with a pair of money 
scales in his pocket, or run the risk of receiving gold 
at one fourth less by weight than it counts." ^ 

Some efforts were made to improve the coinage, 
but without immediate result. Gouverneur Morris, 
while acting as assistant to Robert Morris, drew 
up a scheme for decimal currency,^ and Jefferson, 
at the head of a committee of Congress, considered 
similar plans.* In the summer of 1785 Congress 
announced that the smallest coin should be of 
copper, of which two hundred should pass for a 
dollar, and the "several pieces . . . increase in a 
decimal ratio," '-and on August 8, 1786, a full plan 

* King, Life and Corresp. of King, I., 87. 

2 Washington, Writings (Ford's ed.), X., 493. 
'Sparks, Gouverneur Morris, I., 273 et seq. 

* Jefferson, Writings (Ford's ed.), HI., 446. 
^Journals of Congress, July 6, 1785. 



I40 CONFEDERATION AND CONSTITUTION [1785 

of coinage was adopted. Congress endeavored in 
some measure to remedy the evil by providing for 
a mint and by fixing the value of the coin to be 
struck/ But it is needless to say that practically 
nothing was done. 

Amid all the genuine distress caused by the war, by 
heavy taxes, and by the need of a sound and reli- 
able circulating medium, came still greater trouble 
caused by the restlessness of the people, by the 
honest -minded but uneasy poor, and by the debtors 
who sought an avenue of escape. The times were 
indeed hard for a man that was once down; im- 
prisonment for debt was common; the jails were 
dreadful and filthy ; the processes of the courts were 
expensive and summary. Some quick method of 
paying old debts, some way of getting rid of the 
truly formidable consequences of either idleness or 
misfortune, was naturally sought after, and, follow- 
ing the precedents of earlier days, there was a de- 
mand for paper money, tender -laws, and other 
measures of relief. The years 1785 and 1786 are 
therefore marked by the rise of a paper-money 
party in the states, intent on remedying the sup- 
posed evil of the day, "a scarcity of money." To 
be sure, a good deal of specie had been drawn 
from the country by the recent heavy importa- 
tions of merchandise; but the natural result of 
strenuous efforts to introduce a cheap currency 
was to drive specie out of circulation. The greater 

* Journals of Congress, October 16, 1786. 



1786] PAPER MONEY 141 

the agitation, therefore, the more serious the diffi- 
culty. 

The truth is that in this paper-money agitation 
we see the most serious danger of those dreary days, 
when nearly everybody was grumbling, and when 
the wise and prudent feared even for the foundation 
of society itself; for with the paper-money faction 
everywhere were enrolled, not alone the unhappy 
and the deluded, but also all those uneasy elements 
that opposed the extension of federal authority and 
believed in law only as a means of securing some 
selfish and niggardly end. The paper-money agita- 
tion had much more than a mere financial or busi- 
ness significance; here were gathered together the 
malcontents and the dangerously restless. As con- 
servative men watched the growing discontent they 
grew closer together and saw more clearly the need 
of a strong hand and a firm government to insure 
domestic tranquillity. 

While a good many men saw as clearly as the 
ablest economists of to - day the impossibility of 
making something out of nothing, and while many 
able and honest men argued strongly and vehe- 
mently against the criminal folly of trying to sup- 
ply currency or to restore prosperity by a recourse 
to the printing-press, thousands of lusty throats 
clamored unceasingly for relief. Some miscreants 
had doubtless made money with considerable ease 
during the war, and there was reason for dissat- 
isfaction with the money-sharps who had taken 



£42 CONFEDERATION AND CONSTITUTION [1786 

advantage of the necessities of their neighbors. But 
the argument of the needy or shiftless was easy: 
the property of the United States had been pro- 
tected from destruction by the joint exertion of all, 
it ought therefore to be the common property of all. 
The man that opposed this creed was declared to be 
"an enemy to equality and justice," who should 
"be swept from the face of the earth." "They are 
determined," wrote Knox to Washington, October 
23, 1786, " to annihilate all debts public and private, 
and have agrarian laws, which are easily effected by 
the means of unfunded paper money, which shall be 
a tender in all cases whatever." ^ 

All this mad reasoning was in some degree the 
natural product of a war against authority, a war 
which had brought a social upheaval and was based 
on ideas of personal right and liberty antagonistic 
to authority. As soon as those who had profited 
by the disturbed conditions, or who had fallen into 
extravagant or negligent habits, saw that conditions 
were resuming their old form, that the industrious 
were to reap the fruits of their industry, and that the 
indolent and improvident were likely to suffer the 
natural consequences of idleness and sloth, they be- 
gan to cry out against the existing order. First, the 
grant of full pay for five years to the Revolutionary 
ofificers was the object of attack ; then the weight of 
public taxes, the scarcity of money, and the cruelty 

* Drake, Henry Knox, 91, 92; see also Mass. Centinel, De- 
cember 9, 1786. 



1787] PAPER MONEY 143 

of creditors who were calling for their dues.* Thus 
paper money was the panacea for all their ills. 
"Don't be influenced by anybody's talking and 
nonsense," said one patriotic debtor, addressing his 
fellow-citizens in Connecticut. "Choose for your- 
self. Choose then without favor or affection men 
of simplicity, not men of shrewdness and learning; 
choose men that are somewhat in debt themselves 
that they may not be too strenuous in having laws 
made or executed for collection of debts, nothing 
puts a poor, honest man so much out of ready money 
as being sued, and sheriff s after him. Choose such 
men as will make a bank of paper money, big enough 
to pay all our debts, which will sink itself (that will 
be so much clear gain to the state) ." ^ When a great 
body of men are preaching the righteousness of the 
confiscation of property, the stability of society is 
threatened, even though the method of confiscation 
be simply the depreciation of the currency for the 
benefit of the discontented poor. 

Some of the states, in spite of the popular excite- 
ment over supposed financial ills, refused to go 
back to paper. Connecticut had issued paper at 
the outbreak of the war, but was now well out of 
the trouble and steadfastly refused to burn her 
fingers anew. Massachusetts was feeling sorely the 
derangement of her trade, and within her borders 

* Hart^ Contemporaries, III., 192. 

* New Haven Gazette, March 22, 1787, quoted in Libby, 
Qeo^raphicQl Distribution of the VQte on t^e Federal Const., 58. 



144 CONFEDERATION AND CONSTITUTION [1786 

were thousands of surly malcontents who grumbled 
without ceasing and threatened unsparingly; but 
she, too, was not allured into seeking peace and 
prosperity by the practical confiscation of credits. 
New Hampshire, Virginia, Delaware, and Maryland 
likewise resisted, though in each was a powerful 
party eagerly working for paper. 

The cheap-money faction in Virginia was strong 
and persistent; but fortimately the state contained 
a body of capable men who were not afraid to 
enter the conflict and to call things by their right 
names. One of the noteworthy points of Virginia 
politics was the fact that the best men had from the 
beginning been leaders, had taken part in political 
controversy, and were not accustomed weakly to yield 
obedience to the shouts of an imeasy mob. When in 
1775 men like Thomas Hutchinson were driven from 
Massachusetts and the other colonies, the sober men of 
property in Virginia were the leaders of the populace. 

In 1786 the head of the conservatives in the Vir- 
ginia legislature was Madison. He was at his best 
in discussing a subject like this, which did not re- 
quire great knowledge of finance or of practical 
business, but did need a clear mind, a sound con- 
science, a patriotic spirit, and an ability to see the 
relations between legislation and morality. At no 
time in his career, perhaps, did Madison do more 
valiant or more valuable service for his country 
than in these trying days of the Confederation 
when there were so many social and political perils 



1786] PAPER MONEY 145 

on every hand. He was able, industrious, and full 
of confidence, one of that company of young men 
to whom the upheaval of the Revolution had given 
opportunity, and who did so much for establish- 
ing the Union and setting her feet on the way to 
prosperity. His delicate perceptions, his scholarly 
tastes, his historical and legal knowledge, his simple 
appreciation of right, his sense of justice, were now 
devoted to the interests of his coimtry. He did 
not hesitate to declare that the issuing of paper 
money was pernicious, that it sowed dissensions 
among the states, destroyed confidence between in- 
dividuals, discouraged commerce, enriched sharpers, 
vitiated morals, reversed the end of government, 
which is to reward the best and punish the worst, 
and that if Virginia followed the example of other 
states in adopting paper, she would help to disgrace 
republican government in the eyes of mankind. 
Virginia, to her honor, announced by her house of 
delegates that an emission of paper money would 
be "unjust, impolitic, destructive of public and 
private confidence, and of that virtue which is the 
basis of Republican Government."^ 

In a plan allowing the taxes of the year to be 
paid in tobacco, or, more properly in "inspectors 
receipts or notes for good merchantable crop to- 
bacco,"^ Madison reluctantly acquiesced, for fear 
that "some greater evil under the name of relief 

^Madison, Writings (Hunt's ed.), II., 277, 281. 
2 Hening, Statutes, XII,, 258. 



146 CONFEDERATION AND CONSTITUTION [1782 

to the people would be substituted." * His yield- 
ing was, perhaps, a characteristic piece of weakness, 
but it should be noticed that the plan of having 
government warehouses was one of long standing, 
that tobacco receipts or "promissory notes" had 
not uncommonly circulated as money within a 
limited area in the colony, and that, in fact, this 
great, fragrant crop had in great measure played the 
role of gold and silver in the financial history of the 
colony. The plan of issuing receipts that in fact 
constituted money was not so very different from 
the system in force in the latter part of the nine- 
teenth century, whereby "silver certificates" were 
given out as receipts for a deposit of bullion.^ 

Even in New Hampshire, where the sound-money 
party finally won a decisive victory, and where there 
was on the whole a peaceful and law-abiding spirit, 
there were days of distress and anxiety. The state 
was heavily in debt, was almost hopelessly behind 
in its payments to the federal treasury, and was not 
entirely recovered from the past demoralization of 
its currency. The air was filled with complaints 
of the discontented, with grumblings over taxes, and 
with denunciation of courts and lawyers.^ "Your 
Supplicants have great cause to Mourn," declared 
one petitioning town, "when by Reading and In- 
formation they are Convinced of the happiness, 

* Madison, Writings (Hunt's ed.). II., 301. 
' Ripley, Finan. Hist, of Virginia (Columbia College Studies, 
IV.), 150. ' Belknap, Hist, of N. H., II., 457 et seq. 



1786] PAPER MONEY 147 

those People enjoy . . . Whose Legislative Bodies 
have emitted a Paper Currency." But when the 
people considered ''the immense Treasures" ex- 
pended in the war, *'the hosts of their beloved 
fellow Citizens" that had fallen, ''the rivers of 
human blood with which the earth " was " wantonly 
crimsoned," and when they reflected that though 
the " din of war " was no more heard, they could not 
find the " golden prize — the dear earned promised 
happy day," then they were disconsolate indeed. 
Instead of the "blessings of peace," though they 
sought them "diligently with tears," they found 
misery; they were in a "labyrinth of difficulty and 
distress, like Issachar of old crouching under the 
weight of complicated burdens."* 

In September of 1786 an armed mob some hun- 
dreds strong, demanding paper money, asking for 
distribution of property, and clamoring against gov- 
ernment, surrounded the meeting-house in Exeter, 
where the legislature was in session, and threatened 
to hold the lawmakers prisoners till their demands 
were complied with. Fortunately the citizens of 
Exeter and the neighborhood were not in a mood to 
sympathize with rioting. The mob, first frightened 
by stratagem into retreat, was the next day dis- 
persed by a band of citizens and militia.^ Thus 

* Town Papers of N. H., XI., 122, 123, 488. 

^ Bell, Hist, of Exeter, 96; Historical Mag., 2d series, V,, 37; 
"An Account of the Insurrection in the State of New -Hamp- 
shire — Written by a Gentleman who happened to be present," 
in Boston Mag.^ III., 401-404. 



148 CONFEDERATION AND CONSTITUTION [1783 

the state was saved from disgrace if not from hu- 
miliation. Even before the insurrection the legis- 
lature had determined to submit a paper-money 
measure to the towns of the state for their approval. 
In spite of the clamor of those who pointed to the 
*' Elysian fields" in other states as " contrasted with 
the bondage" of New Hampshire/ good sense pre- 
vailed; the measure was emphatically rejected by 
the people.* 

The conservative party, therefore, in the end 
was safely victorious, but the mob that disturbed 
the peace of placid little Exeter was but illustra- 
tive of the dangers of the time. There was in- 
flammable material in every state. The hoarse la- 
ments of the unhappy, who wished for the promised 
days of plenty and complained that gold and silver 
had " taken wings and flown to the other side of the 
Atlantic," who demanded that ease and prosperity 
be brought to each man's door by legislative enact- 
ment, were heard not alone in the grumbling town- 
meetings of New Hampshire. 

Under the sway of the paper-money party seven 
states entered on the difficult task of legislating 
their people into financial blessedness by the simple 
means of making money, a task which many seemed 
to believe was the most useful employment of 
popular government. Of all the states, Rhode 
Island, with a talent for the dramatic, adopted the 

* Belknap, Hist, of N. H., II., 467, quoting New Hampshire 
Gazette, ]\x\y 20,1786. ^ Early State Papers of N.H., XX., y-j 2. 



1786] PAPER MONEY 149 

most radical measures. The condition of the 
state was doubtless distressing, for nowhere else 
had the war wrought such havoc. Newport had 
been a flourishing seaport before the Revolution: 
htmdreds of vessels each year sailed thence to 
Europe or to the West Indies, or carried cargoes of 
rum to the slave coast, to bring back across the 
Atlantic the black ivory of Africa. Many scores 
of little trading-ships sailed from Narragansett Bay 
to traffic along the coast. There were then in 
Newport oil and candle factories, ropewalks, sugar 
refineries, and as many as twenty -two distilleries to 
produce the New England rum that formed the 
great staple of trade.* At the close of the war the 
town was almost in ruins and its commerce shat- 
tered. Trade was beginning to revive in a measure, 
and Providence was gaining something of what 
Newport had lost ; but the state had great burdens, 
much augmented by a spirit of independence, fault- 
finding, and absurd self-assurance. 

Rhode Island had been founded as a home of the 
''otherwise minded," and for some time it had been 
playing that role with conspicuous success in both 
domestic and continental politics. It had already 
experimented much with paper money, but there 
were many who had not lost faith in what Jay 
called "the doctrine of the political transubstantia- 
tion of paper into gold and silver." ^ The merchants 

» Arnold, Hist, of R. I., II., 300. 

'Jay, Corresp. and Public Papers, III., 215. 



I50 CONFEDERATION AND CONSTITUTION [1786 

and tradesmen of the larger towns opposed the issu- 
ing of more paper, but the country people as strong- 
ly favored it. At the polls the countr3^men were 
successful, and the legislature immediately passed a 
bill for the emission of bills of credit which were to 
be issued to the freeholders of the state, on the 
security of landed property of twice the value of 
the loan. The scrip w^as made legal tender in pay- 
ment of debts. The inevitable difficulties, of course, 
ensued, for the creditors, reversing the time-worn 
practice, sought to escape their debtors for fear of 
being paid in worthless money. To make escape 
impossible, a law was passed declaring that a debt- 
or might pay into court a sum which he asserted 
he owed to a creditor, and that after due notice to 
the creditor the debt should be considered dis- 
charged. But this was not enough. The paper 
depreciated, and the legislature, not to be baffled, 
passed a bill making it an offence punishable by 
fine to refuse to take the scrip. ^ 

The condition of the state during these days was 
deplorable indeed. The merchants shut their shops 
and joined the crowd in the bar-rooms ; men lounged 
in the streets or wandered aimlessly about with no 
hope of employment. A French traveller who 
passed through Newport about this time gives a 
dismal picture of the place : idle men standing with 
folded arms at the comers of the streets; houses 

* Bates, R. I. and the Union, 125, 126; Arnold, Hist, of R. /., 
II-, 521. 



1785] PAPER MONEY ' i^i 

falling to ruins ; miserable shops offering for sale 
nothing but a feAv coarse stuffs or baskets of gnarly 
apples; grass growing in the streets; windows 
stuffed with rags; everything announcing misery, 
the triumph of paper money, and the influence of 
bad government.^ The merchants had closed their 
stores rather than take payment in paper; farmers 
from neighboring states did not care to bring their 
produce and receive nothing but Rhode Island 
scrip. Some of the cotmtrymen sought to starve 
the tradesmen into a proper appreciation of the 
simple laws of finance by refusing to bring their 
produce to market. 

To help enforce the law requiring acceptance of 
paper in payment, the legislature now went one 
step further and provided for a summary trial of 
an offender before a court composed of at least 
three judges. No jury was to be summoned, but 
conviction was to be determined by the majority of 
the judges.^ There now occurred a very interesting 
incident. One John Weeden, a butcher of New- 
port, refused to accept John Trevett's paper money 
in pa^T-ment for meat. In any well-regulated com- 
mimity of reasonable sobriety and sense a butcher 
is not expected to sell his meat unless he wishes to, 
but in Rhode Island in 1786 such a refusal was a 



* Brissot de Warville, Travels (ed. of 1794), I.., 118; see also 
"Diary of John Quincy Adams," in Mass. Hist. Soc, Pro- 
ceedings, 2d series, XVI., 459. 

' Records of State of R. I., X., 213. 



152 CONFEDERATION AND CONSTITUTION [1786 

penal offence, and John Weeden, at the instance of 
Trevett, was haled before the court and charged with 
breach of the law. He was ably defended by learned 
counsel, one of whom was James M. Vamum, a 
lawyer of talent, and for some time a member of 
Congress. 

In a forceful argument to the court, Vamum laid 
down principles of constitutional law of great 
significance, which are now recognized as funda- 
mental and all - important in American jurispru- 
dence. *'The legislative," he declared, "have the 
uncontrollable power of making laws not repugnant 
to the constitution. The judiciary have the sole 
power of judging those laws, and are bound to 
execute them; but cannot admit any act of the 
legislative as law, which is against the constitution." * 
The legislature derives all its authority from the con- 
stitution, but must not violate the constitution, as 
was done by an act depriving citizens of the right 
to trial by jury. "This court," he said, "is under 
the solemn obligations to execute the laws of the 
land, and therefore can not, will not consider this 
act as a law of the land."^ Inasmuch as Rhode 
Island was still working under its old colonial 
charter, and had not a new constitution plainly 
established by the will of the people, Vamum*s con- 
tention was peculiarly bold. But the court sustained 
the argument, declaring that the "information was 

* Coxe, judicial Power and Unconst, Leg., 243. 
*Ibid., 336. 



1786] PAPER MONEY 153 

not cognizable before them." The judgment of the 
court plainly rejected the statute as void because 
contrary to the constitutional authority of the 
legislature. 

The lawmakers, outraged by the conduct of the 
court, summoned the judges to appear before them.^ 
At the hearing the judges ably defended their posi- 
tion, contended manfully for the independence of the 
judiciary, and asserted the unconstitutionality of 
the statute. After hearing the defence, the assem- 
bly voted that it was not satisfied with the reasons 
given by the judges in support of their judgment ; 
but the judges were finally allowed to leave the 
presence of the assembly without further reproof 
and without impeachment. The court had given 
to the public a lesson regarding sense, liberty, and 
the fimction of the judiciary in a free common- 
wealth. Though the decision of the court helped 
to restore confidence and give hope, Rhode Island 
for some time after this was the prey of prejudice, 
jealousy, and ignorance. At the next election only 
one of the judges of the superior court was re- 
elected. 

» Varaum, Trevett vs. Weeden; Thayer, Cases on Constitu^ 
tional Law, I., 73. 



CHAPTER X 

SHAYS'S REBELLION 
(1786-1787) 

BAD as were the follies of petulant Rhode Island, 
they seem to have caused little dismay to the 
conservative men of other states; but events were 
at the same time taking place in Massachusetts 
which startled sober - minded and law - abiding 
citizens ever3rwhere. The air of that state was 
heavy with the murmurs of the discontented. It 
is not easy to say in a word what the trouble was ; 
for though the taxes were high and the indebted- 
ness of the state large, Massachusetts doubtless had 
at that very moment the foundation for reasonable 
prosperity. Crops were good,^ commerce, though in 
some respects disarranged, was reviving, manu- 
factures were growing in number and increasing 
their product. But the demon of depreciated 
money had left its curse upon the state, the old 
continental money was fit only for kindling fires, 
much of the specie had left the country, and good, 
hard money was kept in close confinement. There 
was real need of a circulating medium; at any rate, 
' Mass. Centinel, December 23, i78§. 

154 



1786] SHAYS'S REBELLION 155 

little medium of any kind circulated. ''I go to 
church both parts of the day," confided William 
Pynchon to his diary. "Through the scarcity of 
cash, scarce a dollar is collected at Communion.-" ^ 

No one can say whether the cry of scarcity of 
money had much foundation; at every industrial 
panic there is a demand for more money; people 
without money themselves believe that the effect 
is the cause and get hopelessly immeshed in the 
snares of argument. Naturally, amid all this in- 
dustrial and financial disorder, the improvident 
suffered most severely, and they naturally raised 
a cry for more money. Men that had borrowed 
money or run into debt for goods when a day- 
laborer on the highways received £7 105. a day 
might well wonder as to the possibility of pay- 
ing their creditors when the wage of the common 
laborer had fallen to fifty cents. ^ 

In addition to all this the Revolution had brought 
times of laxity and extravagance.^ It was easy 
enough, of course, for the old squires to mourn the 
virtue of bygone days and to lament the inroad of 
recklessness and presumption — to immovable con- 
servatives the old times are always the better — 
and yet the laments were in part justified. The 
war had loosed from, the old-time restraint the lower 

^ Diary of William Pynchon, February 12, 1786, p. 231. -^ 

'Adams, Hist, of Qiiincy, 260, 261. 

'Lincoln, quoted in Hart, Contemporaries, III., 191; Am. 
Hist. Assoc, Report, 1896, I., 740; Boston Gazette, July 31, 
1786; Mass. Centinel, September 20, 1786. 



156 CONFEDERATION AND CONSTITUTION [1786 

elements of society and had raised up the ignorant 
to places they were not fit to fill.^ Of this there 
are many evidences besides the complaining of the 
time. Much of the trouble, too, must be attributed 
to the general state of uneasiness, which was a 
moral rather than an economic result of the Rev- 
olution, to a feeling of envy for the rich and 
successful. Many were looking anxiously for the 
golden fruit of the tree of liberty, and they found 
it not. "That taxes," said Knox to Washington, 
"may be the ostensible cause is true, but that they 
are the true cause is as far remote from truth as 
light from darkness. The people who are the in- 
surgents have never paid any or but very little 
taxes. But they see the weakness of government: 
they feel at once their own poverty compared with 
the opulent, and their own force, and they are 
determined to make use of the latter in order to 
remedy the former."^ 

The vicious, the restless, the ignorant, the foolish 
— and there were plenty of each class— were coming 
together to test the strength of the newly established 
government of Massachusetts. They did not de- 
termine in advance on breaking up the govern- 
ment, but they were restless and uneasy; they 
were advocating measures which if given free op- 



* Adams, Hist, of Quincy, 265; Jameson, Introd. to the Study 
of the States (Johns Hopkins University Studies, IV., No. 5, 
202), 21; Boston Independent Chronicle, December 15, 1786. 

• Brooks, Henry Knox, 194. 



1786] SHAYS'S REBELLION 157 

portunity for development would have undermined 
government and liberty together. The cause of the 
trouble was declared by General Lincoln to be a 
want of industry, economy, and common honesty. 
It did not better matters that along with these 
dangerous malcontents were many honest citizens 
in real distress and in sore dismay and wonderment.* 
Against the lawyers who took money for trying 
suits against the helpless debtors, or who made out 
the papers that cast the indigent into prison for 
debt, there was an especially bitter feeling; and 
from the lawyers the dislike was readily transferred 
to the courts themselves as a needless encumbrance 
on a. free people. During the days of monetary 
inflation, when scrip was handed about in rolls or 
when debts could be paid according to the tender- 
act in enumerated articles rather than money, some 
creditors had shrewdly not pushed their debtors for 
payment; and when under more normal conditions 
suits were begun to collect money ,^ the shiftless, 
the improvident, and the unfortunate were in 
straits. They naturally detested lawyers and cher- 
ished no love for courts and judges. Some there 
were that found fault with the rich merchants of 
Boston, who, drinking costly wines and clad in 
imported stuffs, were the . ver}^ vampires of the 
state. The wife and daughters of the governor, too, 

* H art , Contemporaries , III., 191. 

' Minot, Hist, of Insur. in Mass., 14; Lincoln, Hist, of WorceS' 
ter, 131. 

VOL. X. — 13 



158 CONFEDERATION AND CONSTITUTION [1786 

were living without work instead of toiling like 
common people; and money, moreover, stayed in 
Boston instead of being divided.^ Of course there 
was no reasoning with men talking such rubbish; 
some were too simple to see their folly ; some were 
shrewd enough to hope for gain; others, normally 
sober-minded and not without sense, listened to the 
clamor and followed wistfully in the train of the 
talkers.^ 

Even the law-abiding citizen began to wonder 
whether it would not be well to try paper money 
once again, whether remedies against the money- 
sharpers could not be found, whether it would not 
be wise to move the general court from Boston 
away from the contaminating influence of the well- 
to-do. Even in such a town as Quincy, where the 
hearts of the citizens were said to be '* inflamed with 
true Patriotism," there were complaints of ''numer- 
ous Grievances" and "intolerable Burthens," and 
the town's representative was instructed to favor 
the making of ''Land a Tender for all debts at the 
Price it stood at when the debts were contracted," 
and to use his efforts to remove the legislature from 
Boston. The people wished the lawmakers to 
"crush or at least put a proper check ... on that 
order of Gentlemen denominated Lawyers the com- 
pletion of whos modem conduct appears to us to 
tend rather to the distruction than the preservation 

^ Diary of William Pynchon, September 18, 1786, p. 250. 
' Mass. Centinel, December 9, 1786. 



1786] SHAYS'S REBELLION 159 

of the Commonwealth."* They also desired the 
court of common pleas and general sessions of the 
peace to "be removed in perpetuam rei Memoriam." 
Extreme measures were now advocated. A con- 
vention of fifty towns in the county of Hampshire 
(August, 1 7 86) ,2 after dwelling on the grievances of 
the time, passed a series of resolutions complaining 
of taxes, courts, lawyers, and scarcity of money, 
and asking " to have emitted a bank of paper money, 
subject to a depreciation," as legal tender in pay- 
ment of all debts — a pleasant plan whereby it was 
to be arranged, presumably, that the money should 
decline by easy stages from par to nothing, in ac- 
cordance with some predetermined requirements 
of descent. A man might thus pay, perchance, 
$4 for a pair of boots in January, $6 the next July, 
$8 in December, until finally if he wished to buy 
boots with scrip he must needs draw his money to 
market in the farm wagon. The acme of this style 
of reasoning was reached in a petition which de- 
clared that the advisable plan was to have a de- 
preciation of a shilling per pound each year; thus 
the money would "go out of circulation in the 
term of twenty years." "By the quantity in cir- 
culation thus constantly lessening," said the pe- 
titioners, "... the credit of the money will be sup- 



^ Adams, Hist, of Quincy, 264, 265. 

* Minot, Hist, of Insur. in Mass., 34-38; see also, for ex- 
ample, resolutions of Middlesex convention, Boston Indepen- 
dent Chronicle, October 19, 1786. 



i6o CONFEDERATION AND CONSTITUTION [1786 

ported." ^ This is not far from saying that if the val- 
ue of the money could only depreciate by agreement 
with sufficient rapidity its value would be maintained. 
Fantastic as these recommendations were, they 
were but the prelude to radical acts. A mob took 
possession of the court-house at Northampton and 
prevented the sitting of the court. A similar oc- 
currence took place at Worcester.^ There were 
likewise uprisings at Taunton and other places. 
At Concord a band of merchants, headed by Job 
Shattuck and a man named Smith, paraded the 
streets in martial order and intimidated the judges 
into promising that no court should be held. Smith 
harangued the crowd of spectators, who were too 
wise or too timid to join the insurgents, declaring 
that " as Christ laid down his life to save the world," 
so he would lay down his life "to suppress the 
government from all triannical oppression." Those 
who would not fall into the ranks of the rebels were 
warned that after two hours they would ' ' stand the 
monuments of God's sparing mercy." ^ When Job 
Shattuck took his part in the harangue and an- 
nounced that the time had come to wipe out debts, 
some disrespectful auditor shouted out, ''Well said, 
well said. Job, for I know you have bought two 
farms lately which you can never pay for." * 

* Lunenberg Petition (MS.) , in Mass. Archives, Senate Docu- 
ment No. 620, 2 ; quoted in Warren, Shays' s Rebellion (MS.). 

* Lincoln, Hist, of Worcester, 134. 
'Pa. Packet, September 23, 1786. 

* McMaster, United States, I., 308, 309. 



1786] SHAYS'S RiEBELLlON i6i 

There were next serious uprisings in the western 
part of the state. At Great Barrington the jails 
were broken open, the courts were prevented from 
sitting, and all but one of the judges compelled to 
sign a pledge that they would not act until the 
grievances of the people were redressed. Later in 
the year even greater outrages were perpetrated, 
law-abiding citizens were hounded out of town, 
houses were searched, citizens were fired on.^ 

The condition was now nothing short of civil war. 
Fortunately the governor, James Bowdoin, was no 
demagogue. He had already spoken in clear tones, 
and he was determined, if possible, to protect the 
courts and keep the peace. At Springfield blood- 
shed was narrowly avoided. The court was pro- 
tected by the militia; but a mob of one thousand 
men with sundry arms and implements of war pa- 
raded the street under the leadership of Daniel 
Shays, a man of no great caliber, who had seen 
service in the continental army, and now looked for 
new fame as the leader of a popular uprising. 

The situation was not materially improved by the 
acts and resolves of the general court, which now 
met at Boston. The governor was supported in his 
vigorous measures to sustain the courts and pro- 
tect property ; but there were members in the house 
who had much sympathy with the rioters and pre- 
ferred soft words to strenuous action. A vote was 

^ Minot, Hist, of Insur. in Mass., 44-50; Holland, Hist, 
of Western Mass., I., 244-248; Diary of William Pynchon, 249. 



i62 CONFEDERATION AND CONSTITUTION [1786 

passed granting pardon to all who within a given 
time would take the oath of allegiance.^ An ad- 
dress was issued to the people, showing that the 
whole annual expense of the government averaged 
only ;£i8,io9, and did not amount to sixteen pence 
per ratable poll.^ Certain stringent measures were 
enacted, and others for the relief of the people, but 
the tone of the legislature was not decisive; the 
rioting continued in various parts of the state, 
and after the adjournment of the legislature in 
November there was even more turbulence than 
before. 

The time for promises and parleyings was, in fact, 
long since passed. Nothing would now tell but 
force, and Bowdoin was not loath to use it. A 
riot again occurred at Worcester,^ and the court was 
once more prevented from holding its sessions. But 
when disturbances were threatened at Concord a 
company of cavalry was sent out against the rebels, 
and it captured the ringleaders, including the re- 
doubtable Job Shattuck. Despite the cold of 
December weather and heavy snow, an army under 
Shays was gathering at Worcester and seemed to 
be threatening to attack Cambridge. When steps 
were taken to protect the city the rebels instead 
of advancing began a disorderly retreat. The cold 

* Acts and Laws of Mass., 1786-1787, chap, xv., November 15, 
1786. 

^ Minot, Hist, of Insur. in Mass., 68; Boston Mag., III., 435. 

^ Mass. Centinel, November 29, 1786. See Bowdoin 's speech 
of February 3, 1787, ibid., February 7. 



1787] SHAYS'S REBELLION 163 

was intense/ the snow deep, there was a scarcity 
of provisions, and the insurgents suffered severely, 
some dying from exposure. This did not end the 
rebelHon, however, and an army of four thousand 
four hundred men was now raised and put under 
the command of General Lincoln. So empty was 
the treasury that funds for the support of the 
troops had to be furnished by voluntary loans from 
wealthy citizens of Boston and other towns.^ 

The centre of the trouble was now shifted to 
Springfield, where an army of rebels commanded 
by Shays, Eli Parsons, and Luke Day was posted. 
Before Lincoln could reach the town an attack 
on the arsenal was beaten back by the militia 
under General Shepard.^ On Lincoln's arrival 
Shays retreated with his forces in great disorder. 
Lincoln pursued relentlessly. Negotiations begun 
by the rebels for a time delayed him at.Hadley; 
but discovering that negotiations were only a pre- 
tence and that Shays had moved on to Petersham, 
he set out from Hadley in pursuit, and, not deterred 
by cutting winds, deep snow, and bitter cold, his 
soldiers marched thirty miles in a single night 
and utterly routed the rebel army.^ The most 
painful results of civil conflict followed. Little 

* Mass. Centinel, December 13, 1786. 

^ Higginson to Knox, Amer. Hist. Assoc, Report, 1896, L, 744; 
Minot, Hist, of Insur. in Mass., 93, 94, 
^ Mass. Centinel, January 31, 1787. 

* See for this, letter of E. Whitney in Cutler, Cutler, 1., 
197-200; Mass. Centinel, February 3 and 7, 1787. 



i64 CONFEDERATION AND CONSTITUTION [1786 

bands of the demoralized insurgents preyed on the 
country. Some of the rebels were intent on con- 
tinuing the struggle, and Eli Parsons, deploring 
that he had not "the tongue of a ready writer," 
begged them not to give up and " see and hear of the 
yeomanry of this Commonwealth being parched, and 
cut to pieces by the cruel and merciless tools of 
tyrannical power." * But before spring the insur- 
gents either were safe at home trying to look as if 
they had spent a placid winter in the quiet of their 
own chimney-corners, or had retreated across the 
border into neighboring states. 

Thanks to the firm hand of James Bowdoin, to 
whose dignity, steadfastness, and right-mindedness 
much praise is due, the insurrection was at length 
suppressed. But let us not suppose that the peo- 
ple of Massachusetts, startled by grim-visaged war, 
hastened to pay honor to the man who had done so 
much to save and redeem the state. On the con- 
trary, at the next election Bowdoin was badly 
defeated and John Hancock, a popular favorite, who 
loved nothing better than sunning himself in the 
smiles of the crowd, was elected governor. As a 
final outcome the rebels were not punished, and 
even Shays was allowed to retire into merited 
obscurity. Shays had not proved a successful 
leader; but probably Napoleon himself would have 
been at a loss to lead such a rabble of inde- 
pendent spirits. In later years he told of asking 
* Mjnot, Hist, of Ifisur. in Mass., 146, 147. 



1787] SHAYS'S REBELLION 165 

a man to stand guard. "No, I won't," was the 
response. "Let that man; he is not so sick as I 
be." ' 

While the rebellion was in progress Congress had 
begun to raise troops, ostensibly to quell the Indians 
on the frontier, really to assist Massachusetts if 
necessary. But though "not only bound by the 
confederation and good faith, but strongly prompt- 
ed by friendship, affection, and sound policy," to 
help the troubled state, and though the arsenal at 
Springfield was the property of the Confederation, 
Congress did not dare say that the troops were to 
be used to restore order and support government 
in Massachusetts. Moreover, in reaching its con- 
clusion to raise troops. Congress thought it wise to 
inscribe on its secret journals the statement that it 
" would not hazard the perilous step of putting arms 
into the hands of men whose fidehty must in some 
degree depend on the faithful payment of their 
wages, had not they the fullest confidence ... of the 
most liberal exertions of the money holders in the 
state of Massachusetts and the other states in filling 
the loans authorized by the resolve of this date."^ 
Here, certainly, was the faintest shadow of self- 
respecting government — afraid to let it be known 
that it intended to protect its own property or 
assist in suppressing rebellion, afraid also to put 

* Lincoln, Hist, of Worcester, 371. 

' Secret Journals of Congress, 1., 267 et seq., October 21, 1786; 
see also Elliot, Debates, L, 94, 95. 



i66 CONFEDERATION AND CONSTITUTION [1786 

arms in the hands of men lest the soldiers turn upon 
it and demand their pay. It dared to take the 
step of calling for troops only because it had been 
assured that "money holders" would take up a loan 
of $500,000 at six per cent., for the payment of 
which it pledged the hoped-for returns from a new 
requisition on the states. 

Shays's rebellion merits attention, not because it 
was the only evidence of social disturbance, but be- 
cause it was the conspicuous uprising that startled 
the thoughtful men of every state and made them 
wonder what the end > of their, great war for in- 
dependence might prove to be. "There are com- 
bustibles in every State," wrote Washington, " w^hich 
a spark might set fire to." ^ "I feel," he declared, 
"... infinitely more than I can express to you, for the 
disorders, which have arisen in these States. Good 
God ! Who, besides a Tory, could have foreseen, or 
a Briton predicted them?" The rebellion, there- 
fore, by disclosing the danger, helped to bring about 
a reaction, strengthen the hands of the conser- 
vatives, discredit extreme democratic tendencies, 
and aid the men that were seeking to give vigor 
to the Union. The reaction immensely helped the 
establishment of new institutions and the creation 
of a government capable of insuring "domestic 
tranquillity." 

The paper - money craze, the tender - acts pro- 
viding that produce rather than money could be 
* Washington, Writings (Ford's ed.), XL, 103, 104. 



17S7) SHAYS'S REBELLION * 167 

offered in payment of debts, the opposition to 
Congressional authority, the restlessness and un- 
easiness in the land, the mobs and rio tings, the 
desire of the poor to enjoy the goods of the rich, 
the notion that debts should be cancelled, were all 
a part of the war which did not lose its momentum 
at Yorktown. Its impulse as a social upheaval, as 
an expression of individuaHstic sentiment, went on. 
And here again we see, too, not only the philosophy 
that had been shouted by orators from the house- 
tops, but the results of an early idealism from 
which the cooler heads were now turning away, the 
notion that men would naturally be good and would 
instinctively be law-abiding, that government was 
needed only for occasional restraint. But all these 
mishaps were bringing men to their senses. "We 
find that we are men," wrote Knox, " — actual men, 
possessing all the turbulent passions belonging to 
that animal, and that we must have a govern- 
ment proper and adequate for him." ^ 

* Brooks, Henry Knox, 195. 



CHAPTER XI 

PROPOSALS TO ALTER THE ARTICLES OF 
CONFEDERATION 

(1781-1786) 

THE year 1786 was, as we have already seen, one 
of discouragement. The country was filled 
with the discontented, who had succeeded in the 
majority of states in getting possession of the gov- 
ernment. The dangerous restlessness of the peo- 
ple, the absurd extravagances of Rhode Island, 
and, above all, the insurrection in Massachusetts 
cast deep gloom over conservative men. Congress, 
begging for power and money, placed solemnly be- 
fore the people their choice of life or death as a 
nation ; but there was no indication of willingness on 
the part of the states to give up money to save the 
country from disgrace. 

Everywhere there was great cause for despon- 
dency : disorder within the states, plots and threat- 
enings on the border, loud laments over commercial 
distress and heavy taxes, and, worst of all, a reckless 
disregard of political obligations. But in this year 
of despair there were some men who still worked 
for real government, and we may now turn our 
attention to the efforts to amend the Articles of 

168 



1786] AMENDMENTS TO ARTICLES 169 

Confederation and to establish the necessary au- 
thority; we shall see that these efforts, reaching a 
climax in 1 7 86, had in reality begun some years before. 
Almost from the time of their adoption there had 
been dissatisfaction with the Articles and little hope 
of their success. No one saw the situation more 
clearly than Washington, who did not hesitate at 
the very outset to say that the affairs of the nation 
could not be well conducted by a Congress with only 
power of recommendation. As early as 1781 he de- 
clared that a mere nominal head would no longer do, 
and that a real controlling power and the right to 
regulate all matters of general concern should be 
given to Congress.* He saw with his accustomed 
simplicity and directness that the states could not 
be relied on to do what Congress asked, and he 
pointed out that the Articles provided no means of 
compelling states to furnish men and money, and 
that for want of such coercive power the war would 
necessarily be prolonged. Like others who were 
to work over this problem in the succeeding years, 
he wondered how the states could be forced to do 
their duty, but he was confident that some means 
must be found. Thus, even before the war was 
over, Washington had stated what was the most 
evident fact and the most trying problem of the 
anxious days of political reorganization .^ 

* Washington, Writings (Ford's ed.), IX., 135, 175, 176. 
2 Madison, Papers (Gilpin's ed.), I., 81-84; see also Ban- 
croft, Hist, of the Const., I., 17-23. 



170 CONFEDERATION AND CONSTITUTION [1780 

Hamilton was dissatisfied and disappointed. 
Months before the Articles were accepted by the last 
state, he wrote (September 3, 1780) to James Duane 
a remarkable letter, in which the young statesman, 
then but twenty-three years of age, showed a thor- 
ough appreciation of the situation, marked out with 
astonishing preciseness the defects in the Confedera- 
tion, and indicated the necessary modifications. 
A "solid coercive union" he deemed then a neces- 
sity, and he proposed, if Congress did not assimie 
the dictatorial power rightfully belonging to it, that 
a general convention should be summoned imme- 
diately.* Two years later he published in the public 
press a series of able articles exposing the frailty of 
the "existing system; every man of information, he 
asserted, would acknowledge the inadequacy of the 
Confederation, and he urged the bestowal upon Con- 
gress of authority to levy taxes and regulate com- 
merce. He wrote eloquently for a larger conception 
of national power and dignity. "There is something 
. . . diminutive and contemptible in the prospect of 
a number of petty States, with the appearance only 
of union, jarring, jealous, and perverse, without any 
determined direction, fluctuating and imhappy at 
home, weak and insignificant by their dissensions 
in the eyes of other nations." ^ Under Hamilton's 
influence, as early as 1782 the legislature of New 
York proposed a convention of the states to revise 

* Hamilton, Works (Hamilton's ed.), I., 150 et seq. 

* Jbid., II., 2QI. 



1782] AMENDMENTS TO ARTICLES 171 

and amend the Articles of Confederation, and de- 
clared that the radical source of the existing em- 
barrassments was the want of power in Congress; 
but on this recommendation Congress took no action. 

In the meantime Madison had been at work in 
Congress for improvement of the Articles. As early 
as March, 1781, he brought in a report from a com- 
mittee which pointed to the fact that the states 
had promised to observe the Articles, and by so do- 
ing impliedly vested in Congress the right to carry 
them into effect against any state which might 
refuse to abide by the determination of Congress. 
That there might be no doubt of the existence of 
this coercive power, the committee advised the adop- 
tion of an additional article expressly authorizing 
Congress to employ the force of the United States to 
compel the states to fulfil their federal engagements.* 
Congress hesitated about adopting such radical 
measures, but the matter was not allowed to drop 
without further attention. In August a new special 
committee, of which Randolph was chairman, handed 
in a carefully prepared report which declared that 
the Articles needed execution in twenty-one different 
particulars, and that seven additional powers should 
be bestowed on Congress ; among these seven was the 
power *' to distrain the property of a state delinquent 
in its assigned proportion of men and money. "^ 

Thus before the Articles had been in full operation 

* Madison, Papers (Gilpin's ed.), I., 88-90. 

' Bancroft, Hist, of the Const., I., App., 286-288. 



172 CONFEDERATION AND CONSTITUTION [1781 

for half a year, if indeed one is justified in using such 
a strong word as operation, Congress was deliberat- 
ing over the necessity of change. Of the revenue 
amendments proposed in 1781 and 1783, and of 
the amendment authorizing the passage of a navi- 
gation law which was proposed in 1784, we have al- 
ready seen the fate ; some states reluctantly granted 
the additional power, but the acquiescence of all the 
states could not be obtained. It seem^ed impossible 
to secure any valuable alteration of the old system 
by the process of pleading, remonstrance, and ex- 
postulation. 

In 1786 the enlargement and improvement of the 
Confederation received consideration from a grand 
committee which proposed the addition of seven 
articles, and attempted especially to provide for the 
collection of taxes.* With this elaborate report 
Congress again did nothing ; in fact, that sober body 
of deputies was getting to be worse than helpless ; a, 
good part of the time it could not even pass resolu- 
tions ; and it was largely made up of decidedly sec- 
ond-rate men, who could not see an inch into the 
future. The whole fabric of the Confederation was 
creaking in every joint. 

The propriety of calling a general convention had 
been widely discussed. In 1784 the plan was com- 
mon talk among the members of Congress,^ but no 

* Bancroft, Hisi. of the Const., II., 374-377. 
'Hunt, Madison, 108; Madison, Writings (Hunt's ed.), II., 
99, 100. 



1786] AMENDMENTS TO ARTICLES 173 

definite action was taken ; and in all probability the 
delegates could have reached no conclusion had they 
tried, for to leave politics aside and agree upon 
movements of deep interest often transcended their 
capacity. When in 1785 the general court of Massa- 
chusetts passed resolutions favoring a convention to 
revise the Confederation, the delegates from that 
state, with rare audacity, refused to lay the resolu- 
tions before Congress. They gave as one of their 
reasons their apprehension of danger from the Cin- 
cinnati and the likelihood that "such a measure 
would produce thro'out the Union, an exertion of 
the friends of an Aristocracy to Send members who 
would promote a change of Government." ' When 
a man like Rufus King was using such absurd lan- 
guage as this, what prospect for a national conven- 
tion or for real improvement of the Articles ? 

Experience, it is plain, had before 1786 taught the 
necessity of bestowing on some central authority 
the power to regulate commerce and the power, to 
obtain revenue without merely begging for it . Every 
passing year since the adoption of the Articles had 
shown more clearly that these two powers should 
have been given to Congress, because without the 
latter Congress was impotent and ridiculous, and 
without the former it had no method of meeting the 
exactions of European nations. It was compelled 
to look on helplessly while the states working at 
cross-purposes were angrily trying to retaliate 
* King, Life and Corresp. of King, I., 63 et seq. 



174 CONFEDERATION AND CONSTITUTION [1786 

against foreign restrictions, or at the next turn of 
the wheel of popular caprice were threatening their 
neighbors with commercial war. The necessity of 
bestowing such powers was clear, for the lesson had 
been sharply taught, and though of course it was 
not learned by the ignorant or the narrow-minded, 
it was obvious to the intelligent statesmen and men 
of affairs, who were not yet prepared to give up their 
country to civil war and ruin. At least this much 
of the great task of imperial organization had been 
made clear by the troublesome years of war and the 
no less anxious years of peace. 

But there were plainly other troubles. Congress 
had been given power to make treaties, but this 
power could not be properly exercised; and our 
commissioners, confident and loyal as they were, 
could not negotiate with assurance or make equi- 
table treaties as long as the states, feeling that they 
were quite as wise as Congress, were ready to disre- 
gard all foreign obligations when they chose. Our 
relations with Spain and England were fraught with 
danger. Surely, if commerce was to prosper, if the 
country was to hold up its head among the nations, 
the states must be under compulsion to perform 
their parts, to abide by the promises of Congress 
and not wantonly break the plighted faith of their 
representatives. In the formation of lasting politi- 
cal order in America some method must be dis- 
covered for securing the observance of treaties; 
without assurance of" honesty any confederation 



1786] AMENDMENTS TO ARTICLES 175 

or any national system would be but sounding 
brass. 

This was clear, and thinking men went further; 
they saw that, if America was to hold together, more 
than mere promise and pledge was an absolute ne- 
cessity. Not for treaties alone, but for othei ob- 
ligations as well, for the satisfactory exercise of the 
powers given to Congress, there must be some sort 
of compulsive authority. So plain was this that 
even Richard Henry Lee doubted whether Congress 
could ever get its money unless it could use force ; * 
and the wiser statesmen had come to believe in the 
absolute need of coercion for the support of govern- 
ment. Jefferson, it is true, was blithely writing 
from Paris that he liked a "little rebellion now and 
then," that it was " like a storm in the atmosphere," 
and that perhaps, after all, the Indians, who had no 
government, were in the best condition ; ^ but Jef- 
ferson had learned no recent lesson in the art of con- 
structing government or in founding an imperial 
system; his mind had not advanced much, if at all, 
beyond the Declaration of Independence. He was 
still toying with liberty after it had degenerated 
into license. 

But Madison's mind, a mind of superior order, had 
advanced ; Washington was as clear-headed as ever ; 
Hamilton and Jay and other great statesmen of the 
time were seeing things face to face. Evidently 

* Rowland, George Mason, II., 105. 

* Jefferson, Writings (Ford's ed.), IV., 362, 370. 



176 CONFEDERATION AND CONSTITUTION [1785 

some radical change was needed, and there arose 
what was the most critical and perplexing problem 
of the period, the most difficult part in the enor- 
mously difficult task of constructing a satisfactory 
political organization for America, 

I have already said that the proper distribution 
of separate powers between the central authority 
and the parts was absolutely necessary if the gen- 
eral system was to last ; but the experiences of the 
Confederation had so plainly shown what powers 
were general and what were local that the task of 
adjustment and proportionment was by no means 
insurmoimtable and did not appeal to the men of 
the time as a task of great labor or trouble. But 
supposing that the cleverest adjustment of powers, 
the most accurate assignment of authority, was at last 
discovered, what security could there be that the 
states would regard the system, play their parts, and 
abide by their obligations? Could any method be 
found for making certain the observance of the Arti- 
cles of Union, for making certain the power of the 
central authority to perform the duties bestowed 
upon it? Could this be done without destroying 
the states as political entities or reducing them to 
mere districts? That was a question that might 
well have confused the clearest brain of the time; 
no more delicate and intricate problem in practical 
politics and statecraft ever confronted a thinking 
people. If a system could be foimd which did not 
involve the destruction of the states, which preserved 



1786] AMENDMENTS TO ARTICLES 177 

an equitable distribution of authority between the 
centre and the parts, the great problem of imperial 
organization had found a solution. If this could be 
done, America would make one of the greatest con- 
tributions ever made by a nation to the theory and 
practice of government, a contribution hardly second 
in importance to the principle of representation itself. 

That nothing worth while could be accomplished 
unless there was coercive authority in the centre 
was to some of the men of the time, as we have said, 
perfectly plain. An interesting essay written by 
Noah Webster in 1785, though probably without 
influence in his day, shows how far the thought of 
the time had advanced: ''There must be a supreme 
power at the head of the union, vested with au- 
thority to make laws that respect the states in gen- 
eral and to compel obedience to those laws. . . . The 
truth of this is taught by the principles of govern- 
ment, and confirmed by the experience of America. 
... So long as any individual state has power to 
defeat the measures of the other twelve, our pre- 
tended union is but a name and our Confederation, 
a cobweb." "A law without a penalty is mere ad- 
vice; a magistrate, without the power of punishing, 
is a cypher.''^ These were strong words and full of 
sense, but it was apparent that the writer had not 
fully solved the problem; a mere provision for a 
national government of supreme authority was not 
enough. 

* Noah Webster, Sketches of American Policy, 31, 32, 44. 



178 CONFEDERATION AND CONSTITUTION [1777 

In an interesting scheme for a general reorganiza- 
tion of the' Confederation which was prepared by 
Pelatiah Webster, one of the clearest-headed writers 
of the day, we find once again the assertion that the 
states must surrender a portion of their sovereignty, 
and that the laws of the Union must carry in* them 
"a force which extends to their effectual and final 
execution"; and we find also the naive suggestion 
that in order to secure obedience to the laws of the 
central government, every person whatever, in either 
his public or his private character, disobeying the 
supreme authority should be summoned to appear 
before Congress and be punished.^ Such a clumsy 
method of securing obedience to law seems whim- 
sical enough ; for Congress to call before it a governor 
or a member of a state legislature and punish him 
for violation of the law in an official capacity would 
of course have been impossible and absurd. But 
the proposition is an illuminating example of how 
men were seeking far and near a solution of the prob- 
lems that oppressed them. 

Madison, of course, thought this problem over care- 
fully and saw the real difficulty. ** An individual 
independence of the States," he wrote Randolph, 
** is utterly irreconcilable with the idea of an aggre- 
gate sovereignty. I think, at the same time, that a 
consolidation of the States into one simple republic 
is not less unattainable than it would be inexpedient. 
Let it be tried, then, whether any middle ground can 
• Pelatiah Webster, Political Essays, 233, 333. 



1786] AMENDMENTS TO ARTICLES 179 

be taken, which will at once support a due suprem- 
acy of the national authority, and leave in force the 
local authorities so far as they can be subordinately 
useful." He proposed, therefore, a system which 
would work " without the intervention of the States," 
and declared that the national government should 
have a veto on all acts of the state legislatures like 
that exercised by the king of England over the 
colonies ; and he may also have thought, though this 
is not quite plain, that the central authority should 
have the right to overthrow the decisions of state 
judges/ Thus far had men come in their effort to 
build up in America a substantial organization 
preserving local liberty and power, but expressing 
also the general interests and the common life of 
the nation. 

' In this dreary year of 1786, while men were writ- 
ing and arguing, and the liberal-minded among them 
were almost in despair, a movement which had re- 
sults of unexpected magnitude was already under 
way. It grew out of the need of some sort of under- 
standing between Maryland and Virginia concern- 
ing the navigation of the Potomac ; and back of the 
plan of agreement and accommodation were Wash- 
ington and Madison. As early as 1777 three com- 
missioners had been appointed from each of the 
two states. Nothing having been accomplished at 
the first convention, Virginia, in 178.4, again appoint- 
ed commissioners, and in January, 1785, Maryland, 
* Madison, Writings (Hunt's ed.), II., 337-339. 



i8o CONFEDERATION AND CONSTITUTION [1785 

willing to co-operate, took like action. On the 
invitation of Washington, who was then greatly- 
interested in projects for opening up routes of com- 
munication between the east and the west, five 
of the commissioners met in the spring of 1785 at 
Mount Vernon, drew up resolutions to be sub- 
mitted to their states, and asked the co-operation 
of Pennsylvania in their plans. This report was 
accepted by each of the states, but Maryland was 
prepared to go further; she asked for a new con- 
ference on commercial questions and proposed the 
concurrence of Pennsylvania and Delaware.* 

Those who were anxiously scanning the horizon 
saw hope in the suggestion ; if two more states were 
to come into the conference they would "naturally 
pay the same compliment to their neighbours." ^ 
Madison, hard at work in the legislature, was ready 
to do what he could to further the movement ; but 
he had to contend with a vehement anti-nationalist 
party, who were "bitter and illiberal against Con- 
gress . . . beyond example," and in their narrow 
dread of northern commercial power actually con- 
sidered whether it would not be well to encourage 
British shipping in preference to that of the eastern 
states. When resolutions granting Congress authority 
to regulate commerce were brought before the legis- 
lature, they were long discussed, but were at length 
so hopelessly mutilated that friends of the measure 

» Scharf, Hist, of Md., II., 532. 
'Madison, Writings (Hurjt's ed.), II., 198. 



1786] AMENDMENTS TO ARTICLES i8i 

lost interest in their passage ; and on the last day of 
the session another resolution, which had been lying 
peacefully on the table, was taken up and passed 
almost without opposition (January, 1786).* This 
resolution appointed commissioners to meet such 
commissioners as might be appointed by other states 
to take into consideration the trade of the Union, 
and "to consider how far a uniform system in their 
commercial regulations may be necessary to their 
common interest and their permanent harmony." 
The commissioners, of whom, of course, Madison 
was one, being instructed to make the necessary 
arrangements, invited the other states to send dele- 
gates to a convention at Annapolis to be held the 
first Monday in September, 1786. 

During the summer before the meeting Madison 
was doing what he could, but had not much hope. 
*' I almost despair of success," ^ he wrote. And yet he 
believed that something must be done quickly, for 
delay added to the peril ; the introduction of new 
states might add new elements of imcertainty and 
perhaps of discord, and there was, moreover, so 
much selfishness and rascality abroad in the land 
that any one looking about him might well have 
feared that the game by which Philip managed the 
confederacy of the Greeks would be played on the 
American states.^ *'I saw eno'," Madison said, 
"during the late Assembly of the influence of the 

* Madison, Writings (Hunt's ed.), II., 218. ' Ibi4.f 329. 

* Ibid., 22^. 



1 82 CONFEDERATION AND CONSTITUTION [1786 

desperate circumstances of individuals on their pub- 
lic conduct to admonish me of the possibility of find- 
ing in the council of some one of the states fit in- 
struments of foreign machinations." 

The convention met at Annapolis, but delega- 
tions from only five states were in attendance. 
Evidently nothing could be done in the way of car- 
rying out the express purpose of the meeting, and it 
was therefore decided to take another bold step for- 
ward and to hope for better results. A report, 
written by Hamilton, was unanimously adopted. It 
pointed to the critical situation of the states, which 
called for the exercise ''of the imited virtue and 
wisdom of all the members of the confederacy," and 
it proposed a convention of delegates from all the 
states to meet at Philadelphia the second Monday 
in May (1787) "to take into consideration the situa- 
tion of the United States, to devise such further 
provisions as shall appear to them necessary to 
render the constitution of the federal government 
adequate to the exigencies of the Union ; and to re- 
port such an act for that purpose to the United 
States in Congress assembled, as, when agreed to by 
them, and afterwards confirmed by the legislatures 
of every state, will effectually provide for the 
same." * 

Although the commissioners declared that they 
could properly address only the states, " from motives 
of respect" they transmitted their report to Con- 
» Elliot. Debates, I.. 118. 



1787] AMENDMENTS TO ARTICLES 1S3 

gress as well as to the governments of all the states. 
Congress might have been expected to grasp at this 
opportimity for bettering national conditions, but it 
hesitated and demurred, and finally, February 21, 
without mentioning the request of the Annapohs 
convention, called a convention to meet at the time 
and place mentioned in the report of the commis- 
sioners, "for the sole and express purpose of revis- 
ing the articles of confederation," and to report 
such alterations as should "render the federal con- 
stitution adequate to the exigencies of government, 
and the preservation of the union." ^ 

For the men who had been looking for the estab- 
lishment of respectable institutions the winter was 
full of activity and interest. In the end twelve 
states appointed delegates to the convention, Rhode 
Island alone holding aloof. But the wisest men in the 
land were not very hopeful of results. Jay pointed 
out that the great trouble was not merely "want of 
knowledge," and that "reason and public spirit" 
required the aid of virtue. Washington lamented 
the factious spirit of the state politicians and, above 
all, the "thirst for power, and the bantling — I had 
like to have said monster — sovereignty," which had 
taken fast hold on the states.^ 

* Journals of Congress, February 21, 1787. 

'Jay, Corresp. and Public Papers, III., 239, 244. 



CHAPTER XII 

PLAN FOR A NATIONAL GOVERNMENT 
(1787) 

AS the delegates chosen to the convention began 
i\ coming together in Philadelphia in May, it 
was apparent that the crisis had produced an as- 
sembly of capable men ; many of them had already 
won distinction; most of them had had experience 
in poHtical affairs. They represented on the whole 
the conservative elements of the nation, who were 
dismayed by the appearance of discord and law- 
lessness, and who appreciated the national danger. 
They were more than practical politicians ; they were 
men of education as well as of experience ; about half 
of them had had college education; many of them 
were learned in law and history. 

Washington and Franklin, the most famous mem- 
bers, were without the advantages of tiniversity 
training; but they had the wisdom which is not 
gleaned from books or absorbed from teachers — 
rare judgment, wide knowledge of men, profound 
insight into human motives, remarkable sanity, and 
a capacity for generous appreciation of the senti- 
ments of their fellows. Franklin did not play a 

184 



1787] NATIONAL PLAN 185 

very conspicuous part in the convention, but his 
kindly humor and his national spirit were of value. 
Washington had hoped that he would be excused 
from attending; his friends persuaded him to come, 
however, and no one better realized the gravity of 
the movement— he saw the best men of the coimtry 
chosen as delegates ; the convention was the end for 
which earnest men had long been toiling; if it failed, 
what hope of reformation or the saving of national 
credit and reputation ? ' ' My wish is, ' ' he wrote, ' ' that 
the convention may adopt no temporizing expedi- 
ents, but probe the defects of the constitution to 
the bottom, and provide a radical cure, whether 
they are agreed to or not." * He did not take an 
active part in the debates of the convention ; there 
is no evidence of his having spoken more than once ; 
but by sheer weight of character he did what much 
volubility and streams of sonorous language could 
not have accomplished. 

Of the more active members of the convention 
Madison deserves chief consideration. We have 
already seen how anxious he was to better the fed- 
eral government; he had been waging continuous 
warfare against the paper-money men and the forces 
of disorganization within his state. He prepared 
carefully for the work of the convention : he bought 
and read books ; he studied the confederacies of the 
ancient world and the combinations of modem 
states ; he noted carefully the characteristics of each 
» Washington, Writings (Ford's ed.), XL, 134. 



i86 CONFEDERATION AND CONSTITUTION [1787 

and dwelt on the ideas that were pertinent to Amer- 
ican problems. He saw that the Amphictyonic 
Coimcil could employ the "whole force of Greece 
against such as refused to execute its decrees." In 
the Lycian League he found that "the nimiber of 
votes allotted to each member was proportioned to 
its pecuniary contributions." ^ Before the conven- 
tion met he draughted an indictment of the vices of 
the political system of the United States. The first 
and most significant of the faults of the Confedera- 
tion was the failure of the states to comply with the 
constitutional requisitions. This he declared to be 
exemplified in every confederacy and fatal to the 
objects of the American Union. The other vices he 
enumerated serve to show how clearly Madison saw 
the situation and what he deemed the task of the 
convention: encroachments by the states on the 
federal authority ; violations of the law of nations and 
of treaties ; trespasses of the states on one another's 
rights ; want of concert in matters of common inter- 
est; absence of a guaranty for state constitutions 
and laws against domestic violence ; no sanction to 
the laws and no coercive powers in the central gov- 
ernment; ratification of the Articles by the legislat- 
ures and not by the people ; multiplicity, mutability, 
and injustice of state laws. "A sanction," he de- 
clared, "is essential to the idea of law, as coercion is 
to that of Government 2 Pqj. want of real power 

* Madison, Writings (Hunt's ed.), 11., 369, 372. 
^ Ibid., 361-369. 



1787] NATIONAL PLAN 187 

the Confederation had been a failure ; the confidence 
which the framers of the Articles had shown in the 
good faith of the state legislatures only did honor 
to the ** enthusiastic virtue of the compilers ' ' of the 
instrument. 

By such careful methods of study and by accurate 
thinking Madison had fitted himself to take a lead- 
ing part in the convention's work. Quiet and un- 
obtrusive, his knowledge gave him an advantage 
over more eloquent members. *'In the manage- 
ment of every great question," wrote a delegate from 
Georgia, "he evidently took the lead in the Con- 
vention. . . . From a spirit of industry and applica- 
tion which he possesses in a most eminent degree, he 
always comes forward the best informed Man of any 
point in debate." * 

The Pennsylvania delegation included several 
men of unusual talent. Robert Morris took no share 
in the public discussions, but he had done much and 
learned much in the days of trouble, and he appre- 
ciated the need of real government. Gouverneur 
Morris, one of the enthusiastic, daring young men of 
the day, was a brilliant and effective debater and a 
speaker of unusual power; alert, dogmatic, caustic, 
and positive, he occasionally repelled rather than 
convinced his opponents ; but he toiled for a national 
system and was filled with real patriotic spirit. The 
felicitous wording of the Constitution in its final f orm^ 

* Pierce's notes, in Amer. Hist. Review, IIL, 331. 

» Letter of Madison in Sparks, Gouverneur Morris, I., 284. 



i88 CONFEDERATION AND CONSTITUTION [1787 

is due to Morris's command of simple and forci- 
ble English. From Pennsylvania came also James 
Wilson, a Scotchman by birth, educated at a tini- 
versity in North Britain, learned in the law, a stu- 
dent of history and political theory. No one saw 
more clearly the central point of the great prob- 
lem before the convention; no one labored more 
steadily, or was able, casting all details aside, to 
grasp more firmly the most essential and significant 
principles. He shared with Madison the honor of 
leadership during the first half of the convention's 
work, planning and toiling and speaking for the 
recognition of national life in the establishment of a 
national government. 

New York sent two men of mediocre attainments, 
Lansing and Yates, who feared for the safety of 
state ascendancy. The third member of the delega- 
tion was Alexander Hamilton. He had for years 
been working for a stronger central government, 
and he imderstood the situation well, but he was 
embarrassed by his colleagues, who could always 
cast the vote of the state against his wishes ; and he 
was now so insistent upon authority, so out of pa- 
tience with feeble government, that for the moment 
at least his ideas were extreme and inapplicable. 
He was young, enthusiastic, self-satisfied, and clear- 
headed, and rather *' a convincing Speaker" than " a 
blazing Orator." * 

From Connecticut came three men of the first 

* Pierce's notes, in Amer. Hist. Review, III., 327. 



1787] NATIONAL PLAN 189 

rank, William Samuel Johnson, Oliver Ellsworth, 
and Roger Sherman. Johnson, just elected presi- 
dent of Columbia College, had been a member of 
Congress, and had a broad view of the situation. 
Ellsworth was a lawyer of reputation and had at an 
early age been made a judge of the superior court 
of his state. Sherman had started life as a shoe- 
maker, had entered into the political struggles of the 
Revolution, and had held many positions of trust and 
honor. His simple honesty, his sound sense, and his 
straightforward thinking made him a man on whom 
others relied. The two most prominent delegates 
from Massachusetts were Elbridge Gerry and Rufus 
King. Both had been members of Congress. Both 
were young men of talent. Gerry played a curious 
role in the convention, and has not left a reputation 
for either just discrimination or wise judgment. 
King, an eloquent and polished speaker, a man of 
exceptional personal charm, had for some time been 
opposed to radical action in altering the Confedera- 
tion ; but he had come to see the danger of delay, and 
was now ready to act with Wilson and Madison as 
one of the most effective nationalists in the con- 
vention. 

In the New Jersey delegation was William Pater- 
son, a lawyer like many of the rest, a man of good 
ability and of undoubted rectitude of purpose. He 
was not, however, broad-minded, when compared 
with the best men about him, and he did not, as we 
now see, appreciate the magnitude of the problem 



igo CONFEDERATION AND CONSTITUTION [1787 

or really know the condition of the country. From 
Delaware came John Dickinson, who had won un- 
dying reputation as the " penman of the Revolution." 
One of the ablest lawyers and most scholarly men 
of his day, honest, right-minded, and earnest, he did 
not always have the faculty of looking at things sim- 
ply or without misgivings and hesitations. The most 
conspicuous delegate from Maryland was Luther 
Martin, a learned lawyer, an implacable and irri- 
tating opponent, a prolix and wearisome speaker.^ 
The delegates from vSouth Carolina, John Rutledge, 
Charles Cotesworth Pinckney, Charles Pinckney, 
and Pierce Butler, were men of strength. The 
youngest of them all, Charles Pinckney, then under 
thirty years of age, had already been a member of 
Congress and had taken a deep interest in the refor- 
mation of the Confederation. 2 His experience in 
public affairs had taught him the need of a thorough 
change in the organization of the Union. 

The second Monday in May was the day set for 
the convention, but when the time came only a few 
delegates had assembled. Rhode Island, in placid 
self-assurance, had not appointed any delegates, and 
had no intention of doing so. New Hampshire did 
not appoint till June.^ At the beginning, therefore, 
the most that could be expected was representation 
from eleven states. These early days, when the 

* Pierce's notes, in Amer. Hist. Review, III., 330; P. L. Ford, 
Essays on the Constitution, 183. 

* Amer. Hist. Review, IX., 738. ^ Elliot, Debates, I., 126. 



1787] NATIONAL PLAN 191 

delegates on the ground were waiting for a quorum, 
were not without their value. The more earnest 
advocates of strong government had a chance to talk 
over the situation. There was prevalent among the 
delegates that first assembled a desire for radical 
action. Some of them had clearly in mind a total 
alteration of the existing system — they proposed to 
establish *'a great national council or parliament" 
consisting of two branches; to base this council 
on proportional representation of the states; to 
grant it full legislative authority; to bestow upon 
it unrestricted power of vetoing state laws ; and to 
create an executive office and a judicial system.* 
The Pennsylvania delegates proposed to Virginia 
that the large states should at the outset unite 
in refusing the small states an equal vote in the 
convention, **as imreasonable, and as enabling the 
small States to negative every good system of govern- 
ment." The Virginia representatives, fearing that 
such an efiovt would beget fatal altercations, did not 
favor the project, but proposed that the smaller 
states should be prevailed on in the course of the de- 
bates to yield their equality.^ This was the be- 
ginning of the large-state or national party of the 
convention. 

On May 25 enough states were represented to 
allow the- organization of the convention. Wash- 
ington was unanimously chosen president. It was 

* Rowland, George Mason, II., 10 1. 
'Madison, Writings (Hunt's ed.), III., 7, n. 



192 CONFEDERATION AND CONSTITUTION [1787 

determined that the discussions should be carried 
on in profound secrecy, and that nothing spoken in 
the house should be printed or otherwise made pub- 
lic without permission. We are, therefore, depend- 
ent for our knowledge of those immortal debates 
in part on the formal journal ; in part on the occa- 
sional letters that were sent by the delegates to their 
friends ; in part on the hasty notes that were written 
down by Yates, King, and a few other delegates ; but 
chiefly on the careful reports prepared by the me- 
thodical Madison. Knowing the importance of the 
assembly, Madison took a seat near the front, listened 
with attention to the speeches, and laboriously wrote 
down brief and luminous condensations of them. 

The delegates from Virginia, doubtless again 
guided by Madison's indefatigable temper, met 
daily before the convention assembled,^ and drew 
up a plan of a constitution, which was introduced 
by Randolph on May 29.^ In an able speech he 
spoke of the defects of the Confederation, the pros- 
pect of anarchy, and the remedy in the establish- 
ment of effective government which could defend 
itself against encroachment and be superior to the 
state constitutions. The Virginia resolutions de- 
serve careful consideration because they were taken 
as the basis of the convention's work, and formed 
the foundation of the new Constitution. 

They declared that the Articles of Confederation 

* Rowland, George Mason, II,, 10 1. 

* Madison, Writings (Hunt's ed.), III., 15. 



1787] NATIONAL PLAN 193 

should be corrected and enlarged, and that to ac- 
complish that object the right of suffrage in the na- 
tional legislature should be proportioned either to 
the quotas of contribution or to the number of free 
inhabitants; that there should be a legislature of 
two branches, the members of the first branch to be 
chosen by the people of the several .states and to be 
ineligible to office under either the United States or 
any state during their term of service. The mem- 
bers of the second branch were to be elected by those 
of the first, and were likewise to be ineligible to office 
imder either the United States or any state. Each 
branch was to have the right to originate bills. The 
national legislature was to have all the powers vested 
in the Congress of the Confederation, and in addition 
other powers which the states were incompetent to 
exercise. A national executive was to be established, 
and a national judiciary with a limited jurisdiction 
including the right to try suits in which foreigners 
were interested, which concerned the national rev- 
enue, or which involved the *' national peace and har- 
mony," as well as all cases of impeachment. Pro- 
vision was made for the admission of new states, 
for the guaranty of a republican government to the 
states, for amendment "of the Articles of Union." 
It was expressly provided also that the alterations 
proposed to the existing Confederation should be 
submitted to state constituent assemblies or con- 
ventions expressly chosen to consider them in the 
various states. 



194 CONFEDERATION AND CONSTITUTION [1787 

Evidently the Virginia plan was not a mere " tem- 
porizing expedient." It contemplated the estab- 
lishment of a national government and the forma- 
tion of a real constitution. Apparently the new 
government was to have powers of legislation and 
not merely of recommendation. There was, more- 
over, some provision for the maintenance of au- 
thority, a remedy offered for the old difficulty. The 
plan provided that the officials of every state should 
"be bound by oath to support the articles of 
Union"; that the national legislature should have 
power to call forth the militia against any member 
** failing to fulfil its duty"; and that it should like- 
wise be empowered to negative all laws contraven- 
ing in its opinion the Articles of Union. Such was 
the remedy offered — the moral obligation of an oath, 
the force of neighboring states, the veto in the hands 
of the central government. Something better than 
this must be discovered before the convention 
solved its most trying problem. 

When Randolph had finished, Charles Pinckney 
introduced a plan^ of his own, confessing that it 
was based on the same principles as Randolph's.^ 
It also proposed a legislature of two branches, execu- 
tive and judicial departments, and a negative on the 
acts of the states. This plan was not discussed in 
detail before the convention, but it had considerable 
influence in determining the contents of the Con- 

* Madison, Writings (Hunt's ed.), HI., 22. 

* Elliot, Debates, I., 391. 



1787] NATIONAL PLAN IQS 

stitution.' It should be noticed that the plan com- 
monly printed in the Journal'^ of the convention 
and in Madison's notes is not the real plan Pinckney 
presented ; as it stands in the Journal it has deceived 
thousands of persons, who have been struck with 
the remarkable resemblance between the plan there 
printed and the finished Constitution, a resemblance 
accotmted for by the fact that when the Journal 
was being printed, in 18 18, Pinckney sent in as a 
copy of his plan, not his original propositions at all, 
but a paper which marked an advanced stage of the 
convention's work.^ 

The fundamental proposition presented to the 
convention by the Virginia plan was next put for- 
ward sharply in a series of resolutions which were 
offered by Randolph on the suggestion of Gouver- 
neur Morris : the eager young statesman from Penn- 
sylvania could not wait for any gradual elaboration 
of a plan or principle of government. These reso- 
lutions showed clearly the intent of the leaders of 
the large-state party: (i) " that a imion of the States 
merely federal will not accomplish the objects pro- 
posed by the articles of Confederation"; (2) "that 
no treaty or treaties among the whole or part of the 
States, as individual Sovereignties, would be suffi- 
cient"; (3) "that a national Government ought to 



* Anter. Hist. Review, IX., 736. 

* Elliot, Debates I., 145; Madison, Writings (Hunt's ed.), III., 
23; journal of the Constitutional Convention (Scott's ed.), 64. 

'Amer. Hist. Assoc, Report, 1902, I., 11?. 



196 CONFEDERATION AND CONSTITUTION [1787 

be established consisting of a supreme Legislative, 
Executive and Judiciary." * Of these resolutions 
the first two were passed by without much discussion. 
The third, which went to the gist of the question 
before the convention, was agreed to, New York 
being divided and Connecticut voting no. 

Morris, in the course of the debate, explained the 
distinction between a federal and a national or su- 
preme government, ''the former being a mere com- 
pact resting on the good faith of the parties; the 
latter having a compleat and compulsive operation.'* 
Mason declared the Confederation deficient in not 
providing for coercion and pimishment against de- 
linquent states, but argued cogently that punish- 
ment could not in the nature of things be visited on 
states, and that consequently a government was 
needed that could directly operate on men and pun- 
ish only those whose guilt required it.^ There was 
thus brought clearly before the convention the car- 
dinal and central proposition of the Virginia mem- 
bers which the men of national enthusiasm in the 
convention were hastening to support — a. govern- 
ment over men, a rejection of the old theory of 
states united in a perpetual league of inefficient 
friendship. By the adoption of this resolution the 
convention in reality set upon the work, not of 
patching up the old Confederation, but, by a peace- 
ful revolution, of putting aside the old impotent 
system altogether. 

* Madison, Writings (Hunt'^ ed.), HI., 37. ^ Jbid., 39. 



1787] NATIONAL PLAN 197 

In the resolution thus first adopted as the ex- 
pression of the general intention of the convention, 
the word ** national" was used, as in other resolutions 
of the Virginia plan. Later in the history of the 
convention this word was stricken out wherever it 
appeared, and from this fact it has been plausibly- 
argued that the framers of the Constitution aban- 
doned their intention of establishing a national 
government. The elision of the word had, in fact, 
no such significance, for the resolution to omit the 
word was unanimously adopted at a time (June 20) 
when the men desiring a national government were 
in control of the convention ; the reason alleged for 
the omission was not that the purpose of establish- 
ing a national government was given up; the men 
chiefly desiring a national government were evi- 
dently not intent on the word, if their object was 
accomplished ; the word was used and the fact dwelt 
on in debate after the omission of the word from the 
resolutions. In short, the erasure is of no signifi- 
cance except for the fact that in years to come it 
gave some ground for argument and assertion. 

When the proposition for the establishment of 
proportional representation came up, Madison ex- 
plained that while there might have been reason for 
*' equality of suffrage when the Union was a federal 
one among sovereign States," ^ there was no sense 
in continuing that method of representation when a 
national government was established. But this line 
* Madison, Writings (Hunt's «d.), III., 44. 



198 CONFEDERATION AND CONvSTITUTION [1787 

of argument was not quite satisfactory to some of 
the delegates : Delaware had willingly enough voted 
for a national government, • but when it came to 
voting for proportional representation, that was 
another matter ; she did not intend to yield her 
equal share of political influence. The delegates 
from that state reminded the convention that they 
were restrained by their commission from assent- 
ing to any change in the rule of suffrage, and, if 
such a change were insisted on, might feel boimd 
to leave and go home.^ Morris was not im willing 
to force a decision on the question in spite of 
Delaware's protest; but the question was at length 
postponed. 

Thus began the controversy over proportional 
representation, the bitter controversy of the con- 
vention. It was not new. It had its roots in the 
envy and local jealousies that had for ten years and 
more been showing themselves as the bane of conti- 
nental politics. When the question as to the man- 
ner of voting under the Articles of Confederation 
was imder consideration,^ there had been the same 
difference of opinion, and the little states had main- 
tained their right to an equal share in the suffrage. 
The landless states, like Maryland, New Jersey, and 
Delaware, had in the past feared the strength of 
their bigger neighbors, and this same imreasonable 
but natural fear, aided by a zeal for the maintenance 

* Madison, Writings (Hunt's ed.), III., 43. 
' Elliot, Debates, I., 74, 75. 



1787] NATIONAL PLAN 199 

of their political importance, constituted the great- 
est difficulty the convention had now to meet. Men 
that were not on principle averse to the establish- 
ment of a national government were decidedly op- 
posed to a surrender of the political influence of 
their constituents.* 

For a time after the first appearance of this om- 
inous question all went smoothly. Men differed, 
but differed amicably. It was quickly decided to 
have a legislature of two branches, but there were 
differences of opinion as to the msthod of electing 
the members to the legislature. Here evidences of 
a reaction against popular government disclosed 
themselves; the excesses of the mobs had startled 
the New-Englanders.2 Sherman opposed the elec- 
tion by the people, declaring that they should have as 
little to do with government as possible, while Gerry 
maintained that the evils of the country flowed from 
an excess of democracy. **The people do not want 
virtue," he said, **but are the dupes of pretended 
patriots." Mason admitted that the country had 
been too democratic, but he thought there was 
danger of going to the other extreme ; and he argued 
strongly for an election of the first branch of the leg- 
islature by the people. He was ably supported by 
Wilson and Madison. Wilson declared that he " was 
for raising the federal pyramid to a considerable alti- 
tude," and therefore "wished to give it as broad a 

* Madison, Writings (Hunt's ed.), III., 166, n. 
' Grayson'-, statement, ibid., 36, 



200 CONFEDERATION AND CONSTITUTION [1787 

basis as possible."* In spite of these differences of 
opinion a conclusion was soon reached in favor of 
popular election of the first branch.* Although the 
question came up again for debate,' on this point the 
convention had no serious troubles. But to reach a 
conclusion as to the method of electing the members 
of the second branch was evidently out of the ques- 
tion at that time, and the matter was postponed, 
to be discussed more than once again in the weeks 
that followed. 

* Madison, Writings (Hunt's ed.), III., 46-48. 
■ Elliot, Debates, I., 152. • June 6. 



CHAPTER XIII 

SHALL THE CONFEDERATION BE PATCHED UP ? 

(1787) 

THE consideration of the Virginia plan went 
rapidly forward in the early days of the con- 
vention. The discussions were in the committee 
of the whole house, and there was so much agree- 
ment that there seemed good reason for hoping that 
within a short time all the essential features of the 
new Constitution could be decided on. The con- 
vention was in the hands of the large-state men, and 
opposition to their general plans was not as yet 
crystallized. For the time being the critical prop- 
osition, the suggestion of proportional representa- 
tion, was postponed. 

Without discussion it was resolved that each 
branch of the legislature should have the right to 
originate laws, and that all powers belonging to 
the Congress of the Confederation should be trans- 
ferred to the new government. The proposal to 
give* the central authority legislative power in 
"cases to which the separate states are incom- 
petent"* met with some objection, for the fear 
naturally arose that the states would be robbed of 

« Elliot, jC>^6a^5, 1., 153; Msidison,Writings (Hunt's ed.), III., 53. 

201 



202 CONFEDERATION AND CONSTITUTION [1787 

their essential powers. Madison and Randolph de- 
clared their preference for definite and enumerated 
powers; but for the time being the resolution in 
the general form was adopted. Without opposition 
it was resolved to bestow on the national legislature 
the right to negative all laws contravening in its 
opinion the Articles of Union or any treaties sub- 
sisting under the authority of the Union. The 
adoption of such a resolution (May 31), before the 
convention had been at work a week, shows the 
settled purposes of the men controlling its de- 
liberations, their determination to remedy the 
chief fault of the Confederation, and also the ad- 
vantage they had in the early days over the local- 
ists, who were as yet without organization. 

There also arose even before June i the critical 
proposition to grant the national legislature the 
right "to call forth the force of the Union against 
any member . . . failing to fulfil its duty under the 
articles thereof." Madison, the real author of the 
Virginia plan,^ which was meeting such favor, was 
eager for effective government but he doubted the 
practicability, justice, and efficacy of force, ''when 
applied to people collectively and not individually." 
' * The use of force against a State, would look more 
like a declaration of war, than an infliction of punish- 
ment." ^ He hoped that a better system could be 

'Madison, Writings (Hunt's ed.), II., 338. Abbreviations 
are not literally followed in my quotations from this edition. 
Ubid., III., 56. 



1787] PARTY CONTROVERSY 203 

found, and on his motion the resolution was for a 
time put by. Plainly the delegates had not yet quite 
freed themselves from the old notion of the Con- 
federation; they did not yet see the significance 
of their task or just where the Virginia plan was 
leading them. Some saw that government must 
act on men, but even the full force of this was not 
yet clear. 

So rapidly did the work of the convention go 
forward that by June 5 a large portion of the 
Virginia plan had been adopted in committee. 
True, as we have seen, some of the really critical 
questions were postponed and many of the res- 
olutions as adopted were very general in terms; 
nevertheless, the main features of the new order 
were coming into sight — a government with execu- 
tive, legislative, and judicial branches, possessed 
of wide general authority. There was, obviously, 
a determination on the part of the leaders to frame 
a system which would not be burdened by the 
failings of the distracted Confederation. The states 
must be preserved; but they must not be allowed 
to disregard their obligations. It was evident, too, 
that the nationalists were not to be easily dis- 
couraged. When the resolution recommending con- 
ventions for the adoption of the Constitution was 
tinder discussion, Wilson spoke in plain terms; he 
hoped that a disposition on the part of a plurality 
of states to organize "anew on better principles" 
would not be allowed "to be defeated by the in- 



204 CONFEDERATION AND CONSTITUTION [1787 

considerate or selfish opposition of a few States." 
This remark was intended as a warning to New 
Jersey and Delaware/ who were apparently giving 
signs of uneasiness and disaffection. It is an evi- 
dence that the leaders of the convention feared 
the obstinate objection to some essential portion of 
their plan. 

On June 6 arose again the question of choosing 
the members of the first branch of the legislature; 
and in the ensuing discussion certain fundamental 
ideas were brought forward. Once more distrust 
of democracy disclosed itself. Charles Pinckney 
wished an election by state legislatures, since the 
people were unfit for the work. "In Massachu- 
setts," said Gerry, "the worst men get into the 
Legislature. Several members of that Body had 
lately been convicted of infamous crimes." ^ Wilson, 
on the other hand, contended that the government 
ought to possess not only the force but the mind or 
sense of the people at large ; the opposition to be ex- 
pected to the new system would not come from the 
citizens of the states but from their governments, 
" The State officers were to be the losers of power." 
Mason too believed, as before, in popular election. 
"Under the existing Confederacy," he said, "Con- 
gress represent the States and not the people of 
the States: their acts operate on the States, not 
on the individuals. The case will be changed in 
the new plan of Government. The people will be 

• Madison, Writings (Hunt's ed.), HI., 96. • Ibid.f 100. 



1787] PARTY CONTROVERSY 205 

represented; they ought therefore to choose the 
Representatives." ' Dickinson thought it essential 
that one branch of the legislature should be drawn 
immediately from the people and the other chosen 
by the state legislatures.^ After due discussion, the 
convention refused to alter its decision in favor of 
popular election for the first branch. 

The next day (June 7) it was resolved that the 
second branch should be chosen, as Mr. Dickinson 
wished, by the state legislatures. In the course of 
the discussion serious questions came to the surface, 
for some of the large-state men saw that an election 
by state legislatures meant either a surrender of 
proportional representation or a very large and 
cumbersome second branch, inasmuch as each state 
would need to have at least one member. They 
had hoped for some method of election disregard- 
ing state boundaries. Notwithstanding the efforts 
of Madison and Wilson, the resolution received the 
unanimous vote of the states.' 

Before June i, as we have seen, a resolution had 
been adopted providing that the national legislature 
should have the right to veto all state laws con- 
travening the treaties or the Articles of Union. 
Pinckney was dissatisfied with this; it did not go 
far enough for him, and he advocated granting 
authority to veto all laws that should be judged 
improper. The proposition was seriously debated, 

* Madison, Writings (Hunt's ed.), III., loi. * Ibid., 105. 

* Ihid.t 115, 120; Elliot, Debates, I., 165. 



2o6 CONFEDERATION AND CONSTITUTION [1787 

and was favored by Madison, who "could not but 
regard an indefinite power to negative legislative 
acts of the States as absolutely necessary to a per- 
fect System."^ Evidently the leaders did not yet 
see fairly and without obscurity the principles of 
the system they must work out. They had not yet 
followed to its end the logic of their own proposi- 
tions. They did not see how difficult, not to say 
impossible, it would be to make the negative an 
effective means of union and order. To give the 
national legislature such a povver to veto laws con- 
travening the Constitution was to lay the foimda- 
tion for bitter antagonism and probable strife; for 
such a method of correction implied friction be- 
tween governments, continual ~ affronts to state 
pride. But to carry out Pinckney's plan and to 
give the right to veto all laws deemed improper, 
whether contravening the Constitution or not, was 
not only to bestow on the central legislature dan- 
gerous authority, but to establish a relation resting 
not so much on law as on judgment, desire, and 
caprice. Those who were anxious to solve the great 
problem of the time and to discover suitable re- 
straint for the states were as yet too much in- 
fiuenced by their remembrance of the British 
colonial administration.^ They did not yet see face 
to face the legal system which they were to work 
out in their debates, a system based partly on colonial 
institutions and partly on principles of English law 

^ Madison, Writings (Hunt's ed.), HI., 121. ^ Ibid. 



1787] PARTY CONTROVERSY 207 

which were to be applied to wide purposes of im- 
perial organization for the first time in the New 
World. 

We may for the time being delay a consideration 
of how they solved the question. Clearly a free and 
unrestrained negative on all state laws would not 
do. Pinckney's motion was rejected.^ The con- 
vention, however, held to the idea of giving Con- 
gress the power to negative unconstitutional state 
laws. Whether Congress was to have the right to 
coerce a state was as yet undecided. We must 
remember that these two propositions — a veto and 
coercion — were at first the favorite solutions for 
the most difficult part of the problem of imperial 
organization. 

Two weeks had passed without serious difficulty, 
but on June 9 the resolution referring to propor- 
tional representation came up again. Here was 
the danger-point: the small-state men were gather- 
ing strength and getting ready for action. Evi- 
dently they would not surrender the equal rep- 
resentation of the states without a battle, and per- 
haps no argument could make them yield. To 
yield meant to give up, so it seemed to them, not 
only the sovereignty but the dignity and safety of 
their states. The convention was soon sharply 
divided. The delegates from Massachusetts, Penn- 
sylvania, Virginia, North Carolina, South Carolina, 
and Georgia wished representation in proportion 
* Madison, Writings (Hunt's ed.), III., 127. 



208 CONFEDERATION AND CONSTITUTION [1787 

to their importance, partly because they desired 
for their respective states greater political influence, 
partly because they feared, however slight the 
reason, that the small states would vote away their 
money. But it is plain, too, that the leaders of 
this party were in reality a national party, ready 
and anxious to discard the principle and under- 
lying notion of the Confederation. They were de- 
sirous of establishing a national government, and 
yet to retain the states as useful parts of the new 
system. As the days went by, imder the guidance 
of Madison, Wilson, and King they saw fully all 
that was involved, the foundation of a real govern- 
ment with powers of legislation and execution. 

The small - state men, representing Connecticut, 
New York, New Jersey, Delaware, and Maryland, 
were controlled by various motives. Some were de- 
termined to maintain the principle of the Confedera- 
tion, to preserve a union of states possessed of equal 
political rights, to continue the existence of the so- 
called sovereignty of the individual members. They 
wished rather to patch up the old than to create a 
new system. And yet even these men were willing 
to grant additional authority to Congress, and even 
to bestow the right to coerce a delinquent state, 
for all men of sense had learned that mere promises 
were futile. Others, although not averse to a 
national government,* were fearful, with the old- 

* E.g., see Madison, Writings (Hunt's ed.), 116, 125, 166, 
322- 



1787] PARTY CONTROVERSY 209 

time fear, that the larger states would devour the 
small. In part their contention was not for prin- 
ciple but for power. 

However mixed their motives, they were in 
earnest. Martin was prepared to weary the con- 
vention with long harangues. Paterson of New 
Jersey, the impetuous Bedford of Delaware, Lan- 
sing and Yates of New York, were tmyielding. 
They were, moreover, helped by Dickinson, Sher- 
man, and Ellsworth, no one of whom was narrow- 
minded or deeply prejudiced against a national 
government, but all of whom were determined not 
to surrender to the large states the power in the 
new system in proportion to their population or 
wealth. Even through the obscurity of the dry ab- 
stracts of the speeches, as we read them in Madi- 
son's notes, we can get some glimpse of the excite- 
ment, the bitter intensity of the next six weeks 
of debate; for the question at issue was vital, the 
real life of the nation was at stake, and men spoke 
with vehement earnestness. 

As soon as the question was fairly before the 
convention, Paterson attacked proportional repre- 
sentation. He alluded to the hint thrown out by 
Wilson that the large states might form a union of 
their own if the others refused to concur, and re- 
minded the convention that the small states could 
not be compelled to accept disagreeable conditions. 
"New Jersey," he declared, "will never confed- 
erate on the plan before the Committee. She 



210 CONFEDERATION AND CONStlTUtlON [17^7 

would be swallowed up. He had rather submit to a 
monarch, to a despot, than to such a fate. He 
would not only oppose the plan here but on his 
return home do every thing in his power to defeat 
it there. ... A confederacy," he said, ''supposes 
sovereignty in the members composing it and 
sovereignty supposes equality." ^ Wilson answered 
him boldly. He was not afraid of the defection of 
the small states. "Are not thejCitizens of Penn- 
sylvania equal to those of New Jersey?" he asked. 
"Does it require one hundred and fifty of the 
former to balance fifty of the latter? ... If the 
small States will not confederate on this plan, 
Pennsylvania and he presumed some other States, 
would not confederate on any other. We have 
been told that each State being sovereign, all are 
equal. So each man is naturally a sovereign over 
himself, and all men are therefore naturally equal. 
Can he retain this equality when he becomes a 
member of Civil Government? He can not. As 
little can a Sovereign State, when it becomes a 
member of a federal government. If New Jersey 
will not part with her sovereignty it is vain to talk 
of Government."^ 

The small-state men were at first no match for 
their opponents. Apparently they were not yet 
organized or prepared to play their strongest card, 
which was nothing more and nothing less than to 

* Madison, Writings (Hunt's ed.), HI., 133, 134. 
^Ibid., 135. 



1787] PARTY CONTROVERSY 211 

present, as alternatives, either a defeat of propor- 
tional representation or disruption of the conven- 
tion. On June 11, therefore, the convention being 
not yet three weeks old, the motion was carried in 
favor of "equitable" rather than equal representa- 
tion. For proportional representation in the first 
branch the vote stood seven to three. Connecticut 
voted with the large-state party, and the vote of 
Maryland was divided. For proportional represen- 
tation in the second branch, the vote was only six to 
five, because on this point the small-state men were 
in accord. Dickinson and Sherman had already ad- 
vocated equal representation in the second branch, 
and the latter now declared that on that one point 
the small states would never yield. ^ It remained to 
be seen whether in spite of such opposition the large- 
state men could retain their advantage. On their side 
was strength of argument and national patriotism; 
on the other, persistence, local pride, and the threat 
to break up the convention. 

If one could judge from the records of the con- 
vention alone, he would be obliged to think that 
up to the middle of June the national party was con- 
vinced of its complete victory ; it had certainly car- 
ried through its programme with remarkable suc- 
cess. The committee of the whole reported (June 
13) that it had gone through the propositions pro- 
posed by Randolph and was prepared to submit its 
results. Practically the whole of the Virginia plan 
* Madison, Writings (Hunt's ed,), III., 112, 144, 



212 CONFEDERATION AND CONSTITUTION [1787 

had been adopted; all its radical features had been 
preserved, except the provision for the coercion of 
states, concerning which there was disagreement 
even among the large-state leaders. Nineteen reso- 
lutions had been accepted, providing for a national 
government based on the people of the United 
States.* It is probable, however, that Madison, 
Wilson, and their followers were not so confident of 
ultimate victory as the records on the secretary's 
books might seem to warrant ; a determined spirit of 
opposition had disclosed itself in debate, and we can 
well imagine how sharply the party differences must 
have shown themselves in the arguments that were 
going on with decorum and secrecy at the inns and 
coffee-houses of placid old Philadelphia. As a mat- 
ter of fact, the great battle of the convention was 
hardly as yet begun. 

When the committee of the whole had completed 
its work on the Randolph resolutions, Paterson asked 
for further time for considering it, and for the prepa- 
ration of a plan "purely federal" in its principles — 
in other words, a plan retaining the treaty features 
of the old Confederation, not proposing the estab- 
lishment of a really national government. The next 
day he laid before the convention the New Jersey 
plan, the work, in fact, of the small-state party, 
whose eagerness and obstinacy "began now," as 
Madison tells us, " to produce serious anxiety for the 
result of the Convention." "You see," confided 
* Madison, Writings (Hunt's ed.), III., ?6o-i64. 



1787] PARTY CONTROVERSY 213 

Dickinson to Madison, **the consequence of pushing 
things too far. Some of the members from the small 
States wish for two branches in the General Legis- 
lature, and are friends to a good National Gov- 
ernment; but we would sooner submit to foreign 
power, than submit to be deprived of an equality 
of suffrage in both branches of the legislature, and 
thereby be thrown under the domination of the 
large States." * It was like Dickinson to be afraid 
to push things too far, but there is no doubt that 
the danger was serious. 

The New Jersey plan proposed a revision and im- 
provement of the Confederation. To Congress was 
to be given the right to levy duties on imports and to 
regulate trade, to make requisitions on the states for 
funds, and in case of non-payment ''to direct the 
collection.*' The scheme provided for a plural ex- 
ecutive, and for a judiciary in addition to the old 
Congress, for the admission of new states, for uniform 
naturalization, and for the extradition of criminals 
fleeing from one state to another.^ All this looked 
much like a mere amendment of the Articles, and 
that was doubtless what was intended ; but it should 
be noticed that even the framers of the small-state 
plan were well aware that amendments and altera- 
tions which left Congress dependent on the capri- 

* Madison, Writings (Hunt's ed.), HI., 166, n. 

^ Ibid., 166-170, 178; Amer. Hist. Assoc, Report, 1902, I., 
133-143; Amer. Hist. Review, IX., 310-340; Elliot, Debates, I., 
175-177. 



214 CONFEDERATION AND CONSTITUTION [1787 

cious acquiescence of promising states would be of 
little avail, and that they consequently made pro- 
vision not only for directing the collection of taxes, 
but for compelling obedience to the laws and treaties 
of the United States: " If any State, or any body of 
men in any State shall oppose or prevent the carrying 
into execution such acts or treaties, the federal Exec- 
utive shall be authorized to call forth the power of the 
Confederated States, or so much thereof as may be 
necessary to enforce and compel an Obedience to 
such Acts, or an observance of such Treaties." 

These were cogent phrases. Would their adop- 
tion have transformed the old Articles from a ' * rope 
of sand" into bands of steel? Probably not; the 
device of coercion was clumsy at the best, and was 
put forth by men who, anxiously clinging to the 
notion of state sovereignty, or, at least, to the equal- 
ity of the states, still saw clearly that force was a 
necessity. Possibly, one may argue theoretically^ 
their adoption would really have transmuted the 
old Confederation into something stronger, some- 
thing more like a state than a bundle of states; 
but in fact the provision for coercion of states was 
logically more consistent with the establishment 
of a confederation than of a government. Such 
arguments, however, go for little except to show how 
even those most solicitous for the states recognized 
the need of force ; and we may be sure that if the new 
Constitution did not, when finished, provide for coer- 
cion of states, such an omission was not due to the 



1787] PARTY CONTROVERSY 215 

notion that state pledges and local good - humor 
could be relied on, but because a more effective and 
sagacious plan was the outcome of the debates. 

One other provision of the small-state plan chal- 
lenges our attention, for it was an early phrasing of 
a momentous idea, the full drift of which probably 
no *one in the convention yet fully comprehended. 
All acts of Congress- that were made in pursuance 
of its powers, and all treaties made and ratified 
under the authority of the United States, were de- 
clared to "be the supreme law of the respective 
States so far forth as those Acts or Treaties shall 
relate to the said States or their Citizens" ; and the 
courts of the several states were to be bound by 
such acts and treaties in their decisions, ''any thing 
in the respective laws of the Individual States to 
the Contrary notwithstanding." It does not appear 
that Paterson or any of the others was aware that 
in one essential particular they had discovered the 
most valuable single principle that had yet been 
presented, but we shall see that as the days went by 
this proposition of the small states was not forgotten. 

The discussion of the Paterson plan began with 
great earnestness. The plan of LIr. Paterson, said 
Lansing, of New Y'ork, ''sustains the sovereignty of 
the respective States, that of Mr. Randolph destroys 
it"; one plan he declared was federal, the other 
national.^ Paterson made the leading speech in 

^ Madison, Writings (Hunt's ed.), HI., 171; Yates's minutes, 
in Elliot, Debates, I., 411. 



2i6 CONFEDERATION AND CONSTITUTION [17S7 

favor of his propositions, contending that the 
powers of the convention were limited to a revision 
of the old Articles, that ** an equal Sovereignty" was 
the basis of a confederation, and if the idea of 
state sovereignty was to be given up, the only logical 
plan was ''that of throwing the States into Hotch- 
pot." ^ He here discussed the idea of erasing state 
boundaries, a scheme which he and his colleague, 
Brearley, seem actually to have had in serious con- 
templation. Evidently he could see no middle 
ground between state sovereignty and the total ex- 
tinction of the states. Happily, wiser counsels pre- 
vailed even among the most enthusiastic nationalists. 
Wilson answered Paterson in an able speech. 
He did not fear the antagonism of the people. " He 
could not persuade himself that the State Govern- 
ments and Sovereignties were so much the idols of the 
people, nor a National Government so obnoxious to 
them, as some supposed. Why should a National 
Government be unpopular? Has it less dignity? 
will each Citizen enjoy under it less liberty or pro- 
tection ? Will a Citizen of Deleware be degraded by 
becoming a Citizen of the United States? Where 
do the people look at present for relief from the 
evils of which they complain? Is it from an in- 
ternal reform of their Governments ? no, Sir. It is 
from the National Councils that relief is expected." ' 

* Madison, Writings (Hunt's ed.), III., 173-175; Madison, 
Papers (Gilpin's ed.), H., 869-871. 

'Madison, Writings (Hunt's ed.), III., 176.^ 



1787] PARTY CONTROVERSY 217 

The difficulty was well summed up by Charles C. 
Pinckney, who doubtless saw that it was not so 
much theoretical state sovereignty that influenced 
most of the small - state men as a modicum of 
state pride mixed with a good alloy of old-time 
jealousy and a nameless dread of some unknown 
evil. "The whole comes to this," said Pinckney. 
" Give New Jersey an equal vote, and she will dismiss 
her scruples, and concur in the National system."^ 

Randolph, never in his life appearing to better 
advantage, now spoke with rare wisdom and pre- 
cision (June 17). He spurned the notion that the 
convention was to be mildly obedient to letters of 
instruction. He " was not scrupulous on the point 
of power. When the Salvation of the Republic was 
at stake, it would be treason to our trust, not to 
propose what we found necessary. . . . The true 
question is whether we shall adhere to the federal 
plan, or introduce the national plan. The insuf- 
ficiency of the former has been fully displayed by 
the trial already made. There are but two modes, 
by which the end of a General Government can be 
attained : the first is by coercion as proposed by Mr. 
Paterson's plan; the second, by real legislation as 
proposed by the other plan." He declared that 
coercion was ''impracticable, expensive, cruel to 
individuals'' "We must resort therefore to a 
National Legislation over individuals, for which 
Congress are unfit." "A National Government 
* Madison, Writings (Hunt's ed.), III., 179. 



2i8 CONFEDERATION AND CONSTITUTION [1787 

alone, properly constituted," he asserted, "will 
answer the purpose ' ' ; and he begged his hearers to 
remember that the present was the last moment 
for establishing one. ''After this select experi- 
ment, the people will yield to despair."* 

Up to that time Hamilton had been silent, 
though it was not his practice to spare words or be 
chary of opinions. Probably he was embarrassed 
by the fact that he was outvoted by his colleagues 
from New York. Perhaps he was for the time 
pessimistic and curious rather than deeply im- 
pressed. But he now broke silence, and with a long 
speech presented in outline his notion of govern- 
ment, of which little need be said. His propositions 
were extreme, for he freely declared ** that the British 
Government was the best in the world : and that he 
doubted much whether any thing short of it would do 
in America." Irf popular governments, however modi- 
fied, Hamilton had little faith; they were "but pork 
still, with a little change of the sauce.'' "^^ The House 
of Lords he declared was " a most noble institution," 
forming a "permanent barrier against every per- 
nicious innovation," such a barrier as no mere elec- 
tive senate could ever be. The New Jersey plan was 
utterly untenable, but he saw great difficulty in 
establishing a good national government on the 
Virginia plan.^ 

* Madison, Writings (Hunt's ed.), III., 179-181. 

^ Ibid., 190; Yates's minutes, in Elliot, Debates, I., 423. 

^Elliot, Z)^6a^^5, I., 417, ■ 



1787] PARTY CONTROVERSY 219 

According to his own ideas the national legislature 
should have authority to pass all laws whatsoever, 
subject to a veto in the hands of the executive. 
Members of the Senate and the executive were to be 
elected by electors, and to hold office during good 
behavior. The supreme judicial authority was to be 
vested in judges holding office during good behavior. 
Laws of the states contrary to the Constitution of 
the United States were to be utterly void ; and, to 
prevent the passage of such laws, state governors, 
appointed by the general government, were to have 
the right to veto all laws about to be passed in 
their respective states. From our present point of 
view, we see that these propositions had few merits, 
and that Hamilton either failed to grasp the idea 
or was out of sympathy with the cardinal thought 
of the new Constitution, which, under the influence 
of Randolph, Wilson, Madison, and King, was grad- 
ually unfolding. Toward the close of the convention 
Hamilton gave to Madison a paper which he said de- 
scribed the plan he should have liked to see adopted.^ 

Hamilton's general scheme was not seriously con- 
sidered, but the debate continued on Paterson's 
plan. Madison fairly riddled it with objections 
which showed its failure to meet the exigencies of 
the moment; and it was at length determined, by a 
vote of seven to three, to adhere to Randolph's plan 
as preferable to Paterson's.^ Maryland's vote was 

* Madison, Writings (Hunt's ed.), III., 197. 
' Elliot, Debates, I., 180. 



220 COI^FEDERATION AND CONSTITUTION [1787 

divided. Connecticut voted with the majority. The 
delegates from that state were still desirous of pro- 
tecting its interests by some method of equal rep- 
resentation, but nevertheless were tmwilling to put 
up with the makeshift proposition. Thus far (June 
19) the national party was clearly in the lead, and 
there was no longer much danger that their whole 
plan would be overthrown; but there was danger 
that the convention would be broken up or the 
plan spoiled by vicious alterations. 



CHAPTER XIV 

THE GREAT COMPROMISE 
(1787) 

WHEN the Virginia plan, as modified in the 
committee of the whole, was formally taken 
up by the house (June 19) it had been under con- 
sideration for three weeks. Each clause was now 
debated anew, and another opportunity was given 
for discussion on every portion of the plan. Old 
differences reappeared. Evidently the small-state 
party was not yet utterly routed; evidently long 
weeks of debate still remained before adjournment. 
On the consideration of the first resolution, which 
had been adopted in committee May 30, an inter- 
esting discussion arose. Wilson said that by a 
national government he did not mean one that 
would swallow up the states. Hamilton again ad- 
vocated the bestowal of indefinite authority on the 
national government: **If it were limited at all, the 
rivalship of the States would gradually subvert it." * 
King declared that the states had never, properly 
speaking, been sovereign. "They did not possess 
the peculiar features of sovereignty, they could not 

' Madison, Writings (Hunt's ed.). III., 221. 

.,^, ^ .< 221 



222 CONFEDERATION AND CONSTITUTION [1787 

make war, nor peace, nor alliances, nor treaties. 
Considering them as political Beings, they were 
dumb, for they could not speak to any foreign Sov- 
ereign whatever. They were deaf, for they could not 
hear any propositions from such Sovereign. They 
had not even the organs or faculties of defence or 
offence, for they could not of themselves raise troops, 
or equip vessels, for war. On the other side, if the 
Union of the States comprises the idea of a con- 
federation, it comprises that also of consolidation. 
A Union of the States is a Union of the men com- 
posing them, from whence a national character re- 
sults to the whole. ... If the States therefore re- 
tained some portion of their sovereignty, they had 
certainly divested themselves of essential portions 
of it." ^' 

It may be that the reader will say that King was 
wrong and that the states were sovereign. Possi- 
bly they were ; so much depends on what the much- 
abused word sovereign signifies. In the develop- 
ment of modern metaphysics, a development applied 
in America to practical politics, has come the an- 
nouncement that it is impossible to divide sover- 
eignty or for a true state to be divested of "por- 
tions" of sovereignty. However that may be — for 
to discuss metaphysical sovereignty is to get lost in 
mazes of intangible argument and of more impal- 
pable assertion — King was bent on bringing out 
clearly the necessity of establishing a national go v- 
' Madison, Writings (Hunt's ed.), III., 221. 



1787] THE GREAT COMPROMISE 223 

emment and of preserving the states as real politi- 
cal entities— a difficult task, it is true — but on the 
proper working out of this middle ground, on the 
proper balancing of the national power and local in- 
terest, depended the success of the convention and 
the foundation of a new political order, which 
should be neither a thoroughly consolidated state 
on the one hand nor a mere group of states on the 
other. 

It was at this time that the word ''national" was 
stricken from the Randolph plan (June 20),^ and 
surely it is unnecessary to assert that the unanimous 
consent for such erasure was not obtained because 
men had given up the hope of establishing a national 
government; for the change was made when those 
in favor of the Randolph plan and opposed to the 
Paterson movement had won in the convention by a 
vote of more than two to one. Ellsworth had asked 
that the word be erased, so that the resolution would 
run: "that the Government of the United States 
ought to consist of a supreme Legislative, Execu- 
tive and Judiciary." This change, he said, would 
give "the proper title, * the United States.'" He 
wished the plan "to go forth as an amendment of 
the articles of the Confederation, since imder this idea 
the authority of the Legislatures could ratify it." 
Randolph, in reply, " did not object to the change of 
expression, but apprised the gentleman who wished 
for it that he did not admit it for the reasons as- 
* Madison, Writings (Hunt's ed.), HI., 226. 



224 CONFEDERATION AND CONSTITUTION [1787 

signed ; particularly that of getting rid of a reference 
to the people for ratification." ^ 

When the question arose, as it did on the second 
of Randolph's resolutions, as to whether or not 
there should be two branches of the legislature, the 
discussion once more went to the nature of the plan. 
Lansing contended that the true question " was, 
whether the Convention would adhere to or depart 
from the foundation of the present Confederacy." 
He was answered by Mason, who did not expect, he 
said, that this point would be reagitated. On two 
points he declared the mind of the American people 
was settled: first, in an attachment to republican 
government; and second, in an attachment to more 
than one branch in the legislature. Coercion of 
states, such as Paterson's plan contemplated, he 
could think of only with horror ; solicitous for the es- 
tablishment of a national government, he would, 
nevertheless, not consent to the abolition of the 
states. As the debate continued, it must have been 
apparent that the defenders of the Randolph scheme 
had much the advantage in argument, if not in as- 
sertion. The fear that the new government would 
endanger the liberties of the people and encroach upon 
the rights of the states was frankly met. Madison 
and Wilson, who had had sorry experiences as mem- 
bers of the impotent Congress, insisted that the real 

* Madison, Writings (Hunt's ed.), III., 226; see especially 
Martin's letter, in Elliot, Debates, I., 362; Bancroft, Hist, of 
the Const., II., 51. 



17S7] THE GREAT COMPROMISE 255 

peril was gradual disorganization, because of the 
selfishness and petty pride of the individual states. 
''A Citizen of Delaware," said Madison, ** was not 
more free than a Citizen of Virginia: nor would 
either be more free than a Citizen of America."* 

The situation was clearly seen by Johnson of 
Connecticut, an able, serene man of good sense, who 
was willing to look at the whole subject fairly and 
debate it without passion. The New^ Jersey plan, 
he said, preserves the states ; the Virginia plan pro- 
fesses not to destroy them, but is ''charged w^th 
such a tendency." One man alone ^ boldly advocates 
the abolition of the states. *'Mr. Wilson and the 
gentleman from Virginia," he said, ''who also were 
adversaries of the plan of New Jersey held a differ- 
ent language. They wished to leave the States in 
possession of a considerable, though a subordinate 
jurisdiction." Could this arrangement be made? 
That was the question ; evidently that was what was 
troubling the Connecticut delegation. Could the 
power be divided between state and nation, and the 
plan be so carefully adjusted that the states would 
be secure in the portions of sovereignty they re- 
tained ? Could such a division be made secure and 
permanent imless each state were given a "dis- 
tinct and equal vote for the purpose of defending" 
itself " in the general Councils " ?' Plainly Johnson 

^Madison, Writings (Hunt's ed.), III., 243. 

' Hamilton. 

3 Madison, Writings (Hunt's ed.), III., 239, 240. 



226 CONFEDERATION AND CONSTITUTION [17S7 

was sincerely anxious for information, and his fair- 
minded question seemed to indicate that, if the 
states should be provided with means of self-defence, 
Connecticut would not vote against a national gov- 
ernment. On the motion to establish a legislature 
with two branches, the votes stood seven to three, 
with Maryland divided.' 

On this question Connecticut voted with the 
large states, and her delegates apparently saw their 
role clearly : they would not oppose a good national 
government, but they would work for a recognition 
of the states. Strong men these were, with wide ex- 
perience and breadth of view, and they feared that 
unless the states were given distinct political power 
they would be absorbed or lose their significance 
altogether under the weight of a centralized na- 
tional authority. Sherman, perhaps the most in- 
fluential of them all, would not be likely to yield his 
chief purpose ; calm, deliberate, quietly argumenta- 
tive, he was as persistent as pursuing fate^ and, if 
willing to yield a little here and there, it was only 
that he might get as much of his own way as sweet 
temper and plodding patience could secure. 

We can pass rapidly over the debates of the next 
few days, for in general only matters of secondary 
importance were discussed. The vexed question 
of representation was still to be balloted upon. 
For, although the large-state men had as yet won 
decisively on every significant ballot, and might 
» Elliot, Debates, I., 184. 



1787] THE GREAT COMPROMISE 227 

well have thought their opponents hopelessly beat- 
en, the small - state partisans, some of them now 
much excited, were in no mood to give up the fight. 

Near the end of June, after the convention had 
been in session over a month, the resolution for 
proportional representation, which had been adopt- 
ed in the committee of the whole, came before the 
convention. The small-state men were now ready 
for a supreme effort. Martin made a long and 
wearisome address, contending with deep earnest- 
ness that the power of the general government 
ought to be kept within narrow limits, that it was 
meant to preserve the state governments and not to 
control individuals. "The comer-stone of a federal 
government is equality of votes." * ''I would rather 
confederate," he exclaimed, ''with any single state 
than submit to the Virginia plan."^ All the dis- 
cussion seemed to lead to nothing, and Franklin 
solemnly proposed ''imploring the assistance of 
Heaven." " I have lived, Sir, a long time," he said, 
"and the longer I live, the more convincing proofs 
I see of this truth — that God Governs in the affairs 
of men.'' He advocated the opening of the morn- 
ing sessions with prayer.^ Some of the delegates 
thought that such action would arouse suspicion 
of dissension in the convention, and the motion was 
not adopted. 

Men argued about the question of state sovereignty 

* Yates's minutes, in Elliot, Debates, I., 454. 

^ Ibid., 457. 'Madison, Writings (Hunt's ed.), III., 310. 



228 CONFEDERATION AND CONSTITUTION [1787 

and perhaps knew in a measure what they were 
talking about ; but they seemed for a time no nearer 
the solution of the controversy. For some, like 
Martin, contended that the states were sovereign, 
and others, like Madison and Wilson and Hamilton 
and King, did not believe that the states by separat- 
ing from Great Britain became separated from one 
another. A bootless discussion, and one that woiild 
interest us less were it not that in the days to come 
the question of state sovereignty and sundry meta- 
physical subtilties rose like a cloud of darkening 
locusts. 

The debate continued with the fundamental prob- 
lem inextricably connected with the question of 
representation still imsettled. Strong speeches were 
made. But the national party argued in vain and 
pointed to the dangers that all could see. Were the 
small states anxious for liberty? Then let them 
imite and not stand aloof in awe of their more 
powerful neighbors. If no union resulted on just 
principles, if the states watched one another in 
jealous dread, each would soon seek to render itself 
secure by a standing army, and America would soon 
be burdened by military expenses and sustained 
by despotic government. "Constant apprehension 
of war," said Madison, " has the same tendency to 
render the head too large for the body. . . . The 
means of defence against foreign danger, have been 
always the instruments of tyranny at home."* 
* l/is^dison, Writings (Hunt's ed.), III., 317. 



1787] THE GREAT COMPROMISE 229 

The old argument was forcibly repeated by Hamil- 
ton : * the small states might perhaps lose their 
equality, but their citizens would not thus lose their 
freedom. But the truth was, as Hamilton keenly 
said, this was "a contest for power, not for liberty." 
The small states were solicitous for power, but 
were ostensibly anxious for liberty. At length the 
vote came (June 29), and again the national men 
were in the lead. Massachusetts, Pennsylvania, Vir- 
ginia, North Carolina, South Carolina, and Georgia 
voted in favor of proportional representation in 
the first branch of the legislature. Connecticut, 
New York, New Jersey, and Delaware voted for 
equal representation. Maryland was divided, for 
the truculent Martin could not control the vote of 
his state. 

As soon as the vote was declared, the Connecti- 
cut men demanded a decision as to the m.ake-up of 
the second branch of the legislature.^ Ellsworth 
began by saying that on the whole he was not sorry 
that the convention had determined to have un- 
equal representation in the first branch of the 
legislature ; such a decision furnished a ground 'for 
compromise by giving the states equal representa- 
tion in the second branch. He described the Union 
as partly federal and partly national, and asked 
that in the make-up of the government this substan- 
tial fact find recognition. To the notion that there 

* Madison, Writings (Hunt's ed.), III., 319. 

* Johnson ^nd Ellsworth, ibid., 322. 



230 CONFEDERATION AND CONSTITUTION [1787 

was real danger of the combination of the large 
against the small states he still steadfastly climg. 
With this bold demand from the Connecticut men 
for equal representation in the Senate, the conven- 
tion reached its most critical stage; it was "on the 
verge of dissolution, scarce held together by the 
strength of a hair."^ 

The early days of July were full of excitement. 
Despite continued defeats, the small-state men were 
more determined than ever, for, although those de- 
siring merely to patch up the Confederation were 
beaten be3^ond hope of recovery, and though the 
convention was evidently determined to establish 
a national government, they still hoped for recogni- 
tion of the states, and in this contest were guided by 
real leaders. The large-state men were equally de- 
termined. Wilson hoped that men were too wise to 
"abandon a Country to which they were bound by 
so many strong and endearing ties. But should the 
deplored event happen, it would neither stagger his 
sentiments nor his duty. If the minority of the 
people of America refuse to coalesce with the ma- 
jority on just and proper principles, if a separa- 
tion must take place, it could never happen on 
better groimds."^ Some of the delegates were on 
the verge of losing their unsteady tempers, and 
Bedford, of Delaware, stepped fairly over the margin 
and challenged the large states to do their worst: 

1 Martin's letters, in Elliot, Debates, I., 358. 
^yiscdison, Writings (Hunt's ed.), HI., 327. 



17^7] THE GREAT COMPROMISE 231 

"We have been told with a dictatorial air that this 
is the last moment for a fair trial in favor of a Good 
Government. It will be the last indeed if the prop- 
ositions reported from the Committee go forth to 
the people. He was under no apprehensions," he 
declared. "The Large States dare not dissolve the 
Confederation. If they do the small ones will find 
some foreign ally of more honor and good faith, 
who will take them by the hand and do them 
justice." ^ 

Even from the meagre notes of Madison we can 
see something of the excitement, the feeling only 
half suppressed, the grim determination of those 
trying days. We can imagine the hurried con- 
ferences of the different factions and the long, se- 
cret conferences of the different partisans at their 
lodgings. Wilson, Madison, and King made great 
speeches and spoke clear sense, but to Httle purpose. 
It did no good to point out the fact that there was 
no real antagonism of interest between the big 
states and the little ones, and that a government 
designed to cotmteract an imaginary danger was 
based on a fanciful fotindation. The real antith- 
esis lay between the north and the south, and 
men like Madison saw the fact and emphasized it. 
But the small - state men would have none of it. 
In some way they succeeded in reasoning that if 
proportional representation were adopted in "both 
houses the government would be aristocratic or 
* Madison, Writings (Hunt's ed.), HI., 340. 



232 CONFEDERAtlON AND CONSTITUTION [17^7 

become so. ''Are the people of the three large 
States more aristocratic than those of the small 
ones?" asked Wilson. ''Whence then the danger 
of aristocracy from their influence ? It is all a mere 
illusion of names. ... Is a real and fair majority, the 
natural hot-bed of aristocracy?" ^ 

The difficulty of establishing proportional repre- 
sentation presented, however, one real difficulty. If 
the people of each state were to be given the right 
to elect one senator, the number of members in the 
second branch would be too large.. Ninety or a 
hundred senators seemed altogether too large a 
number; for the delegates had in mind the small 
upper houses of the state legislatures or the small 
cotmcils that had existed in colonial times, and 
they probably supposed that the Senate was to have 
more than merely legislative functions. To elect 
senators without reference to state lines also pre- 
sented difficulties, and perhaps needlessly injured 
the self-esteem of the smallest states, like Delaware, 
whose impetuous representative on the floor of the 
convention had been asserting the sovereignty of 
her forty thousand souls. As a compromise, Wilson 
proposed a senator for every one hundred thousand 
inhabitants, with the proviso that each state should 
have at least one.^ 

In this suggestion some of the national party were 
willing to acquiesce; but it did little to soothe the 

* Madison, Writings (Hunt's ed.), III., 328, 329, 333. 
Ubid., 335. 



1787] THE GREAT COMPROMISE 233 

feelings of the localists. King in an eloquent speech 
pleaded for agreement; " his feelings were more har- 
rowed and his fears more agitated for his Country 
than he could express" ; and this he conceived " to 
be the last opportunity of providing for its liberty 
and happiness." **When a just government founded 
on a fair representation of the people of America 
was within" reach, he was amazed that men should 
renounce their blessings from an attachment ''to 
the ideal freedom and importance of States.'' King's 
fervor was wasted. ''When assertion is given for 
proof," said Dayton, of New Jersey, an ardent 
statesman of twenty-six years, "and terror substi- 
tuted for argument, he presumed they would have 
no effect however eloquently spoken. . . . He con- 
sidered the system on the table as a novelty, an 
amphibious monster." * 

On July 2 the question as to the constitution of 
the second branch came to a vote. Hitherto on 
the critical questions the vote of Maryland was 
divided and not counted; but now, in the absence 
of his colleagues, Martin cast the vote of the state for 
equal state representation. On the other hand, the 
delegation from Georgia, thus far acting with the 
larger states, was divided; Baldwin, a Connecticut 
man and a graduate and former tutor of Yale Col- 
lege, possibly influenced by men from his native 
state, voted for equal representation. The states, 
therefore, were evenly divided — five to five ; Georgia's 
* Madison, Writings (Hunt's ed.), III., 338. 



234 CONFEDERATION AND CONSTITUTION [1787 

course was uncertain, but she could no longer be 
counted on for the full purposes of the large-state 
leaders/ What was to be done? 

General Pinckney moved the appointment of a 
grand committee of a member from each state, and 
the proposition met with favor. *' We are now at a 
full stop," said Sherman, "and nobody . . . meant 
that we should break up without doing something." 
Wilson and Madison strongly protested that their 
Congressional experience had taught them the use- 
lessness of grand committees.^ Perhaps they already 
saw the battle going against them; certainly fears 
of defeat were well founded. One would fain know 
the political manceuvring that preceded the^ election 
of the committee. The moment that it was chosen, 
the large-state party was beaten in its effort to have 
proportional representation in both houses; for not 
one of the really strong men of the nationalists was 
chosen. From Massachusetts came not clear-mind- 
ed King, but Gerry; from Pennsylvania, not vigor- 
ous Wilson, but accommodating Franklin; from 
Virginia, not the broad-minded Madison, but Mason, 
who was now lukewarm and was to change into an 
avowed enemy of the Constitution he had helped to 
frame. On the other hand, the committee contained 
Ellsworth, Yates, Paterson, the irrepressible Bed- 
ford of Delaware, the obstinate Martin of Maryland, 

^ Literary Diary of Ezra Stiles, III., 291; Elliot, Debates, I., 

19.3- 
* Madison, Writings (Hunt's ed.), HI., 344, 349, 350. 



1787] THE GREAT COMPROMISE 235 

Baldwin of Georgia, by whose vote Georgia had for 
the moment been lost from the ranks of the large- 
state party, and Davie of North Carolina, who had 
already given signs of indecision/ The eleventh 
member was Rutledge of South Carolina. 

The work of the committee could end in nothing 
but a report surrendering proportional representa- 
tion in the second branch. On July 5 it recom- 
mended the resolution of proportional representa- 
tion for the first branch of the legislature, and that 
all bills for fixing salaries, or for raising or appro- 
priating money, should originate in that branch, but 
that in the second branch each state should have an 
equal vote.^ 

* Madison, Writings (Hunt's ed.), III., 334. 

* Ibid., 352; Elliot, Debates, I., 194, 



CHAPTER XV 

THE LAW OF THE LAND 
(1787) 

THE compromise report of the grand committee 
on representation did not immediately allay 
excitement and ill-feeling. The large -state men 
strongly objected, and some of the small-state men 
were not altogether satisfied.* Lansing and Yates 
now left the convention, giving up hope that its 
labors would be satisfactory to them, as it had taken 
upon itself to do more than revise the Confedera- 
tion, and had gone ahead to establish a "consoli- 
dated government." ^ They thought that they had 
no right to take part in a proceeding that would 
result in depriving *'the state government of its 
most essential rights of sovereignty." ^ Hamilton 
had for some time been absent, and he did not 
return till the middle of August; and even then, in 
the absence of the majority of the delegates, was 
unable to cast the vote of the state. 

Portions of the compromise were long discussed, 
and a peaceful settlement seemed for a time as 

* King, Life and Corresp. of King, I., 614. 
» Elliot, D^6a/^5, 1., 480. * Ibid, 

236 



i 



1787] LAW OF THE LAND 237 

distant as ever. Gouverneur Morris, who had re- 
turned a few days before, after a long absence from 
the convention, attacked the report and pleaded 
with the members to avoid narrowness and to ac- 
cept broad and patriotic views. "He came here," 
he said, " as a Representative of America ; he flattered 
himself he came here in some degree as a Repre- 
sentative of the whole human race; for the whole 
human race will be affected by the proceedings of 
this Convention. He wished gentlemen to extend 
their views beyond the present moment of time; 
beyond the narrow limits of place from which they 
derive their political origin. If he were to believe 
some things which he had heard, he should suppose 
that we were assembled to truck and bargain for our 
particular States." These were noble words, and 
did honor to the man that spoke them. He saw 
with clear vision that the failure of the convention 
meant discredit to America, meant a distracted, per- 
haps a warring nation. "This country must be 
united," he exclaimed. "If persuasion does not 
unite it, the sword will. . . . State attachments, 
and State importance have been the bane of this 
Country. We can not annihilate ; but we may per- 
haps take out the teeth of the serpents."* No 
sounder truth was spoken in the course of the con- 
vention's work. 

The small-state men that were prating of sovereign- 
ty might well listen ; the sovereignty of assumption, 
• Madison, Writings (Hunt's ed.), III., 357-359. 



238 CONFEDERATION AND CONSTITUTION [1787 

the sovereignty of legal fiction, could not hold out 
against the force of fact, and the controlling fact 
was that the country must be united. And yet 
these eloquent words had little effect. Bedford 
half apologized for his previous threats, but found 
some consolation for his own warmth in Morris's 
reference to the sword: **To hear such language 
without emotion, would be to renounce the feelings 
of a man and the duty of a Citizen." * 

Though the stalwart members of the national 
party still fought lustily for a union based on truth 
and not on fiction, there was a growing desire to 
reach agreement. Gerry, of Massachusetts, whose 
whole orbit it is difficult to trace, could now see no 
hope of proportional representation in both branches 
and was getting ready to yield. King protested 
strongly against his colleague's defection. The pro- 
posed government, he said, was to be ''substantially 
and formally, a General and National Government 
over the people of America ' ' ; there would never be a 
case in which it would " act as a federal Government 
on the States and not on the individual Citizens."^ 
The rule of representation in both branches, there- 
fore, should be the same. But Strong, of Massa- 
chusetts, was also wavering: "If no Accommoda- 
tion takes place, the Union itself must soon be dis- 
solved." ^ The small-state men, on the other hand, 
were as determined as ever. On July 16, after the 

* Madison, Writings (Hunt's ed.), III., 360. 

* Ibid., 42g, '/6«c?., 431. 



1787] LAW OF THE LAND 239 

convention had been in session nearly two months, 
the vote was cast in favor of equal representation 
in the second chamber. This time Massachusetts 
was divided, and North Carolina left the ranks of 
the large -state party. The vote stood five to 
four;* one state was divided, and three were at that 
time without representation on the floor. 

The large -state men were loath to give up the 
contest. The strongest among them had seen the 
impotency of Congress, where narrow jealousy and 
petty state politics had played so conspicuous a 
role. Some of them had objected for years to the 
real injustice of the equal jrepresentation that had 
been in vogue from the beginning ; and in organizing 
a national government they had grounds for hop- 
ing that a plan agreeable neither to reason nor to 
justice would be abandoned. The next morning 
after the eventful vote a caucus of the large-state 
party was held before the convention assembled. 
Some of the small-state men were in attendance. 
Should the compromise be acquiesced in, or should 
the large-state party, relying on the justice of their 
cause, persist in their opposition and proceed by 
themselves to frame a constitution?^ No conclu- 
sion could be reached, and when the convention as- 
sembled most of the men were in their places and 
the work went on. 

In this way the great cause of disagreement was 
put aside. Much still remained to be done, re- 

' Madison, Writings (Hunt's ed.), HI-, 438. ' Ibid., 443. 



240 CONFEDERATION AND CONSTITUTION [1787 

quiring wisdom, patience, and thoughtful statesman- 
ship; but from this time forward men could differ 
without losing their tempers. The small-state men 
ceased to interfere with the work of the convention. 
Bedford soon left, or, at least, ceased speaking in the 
convention. Paterson ere long disappeared from 
sight. Nothing more was heard of Brearley for 
over a month. Lansing and Yates had already- 
gone home in disgust. The resolute Martin re- 
mained till near the end of the session, and then 
went home to denounce the large-state party and 
their success in the establishment of a national 
government. Ellsworth, Sherman, and Dickinson, 
who had been all along not ill-disposed to a national 
government if the security of the states was as- 
sured, remained to be of much service in working 
out the details of the Constitution. 

The large-state party was much cast down, but 
there was no real occasion; they had themselves 
seen that there was no reason for expecting actual 
diversity of interest between the big and the little 
states, and there was no real fear that the Senate 
would become another impotent Congress repro- 
ducing the imbecility of the Confederation. The 
time was not far distant when the citizens of the 
states themselves would be divided into political 
parties on national issues, and forget in a measure 
the old-time state antagonisms. It was, moreover, 
moved in the convention, only a short time after 
this critical vote on the great compromise was taken, 



1787] LAW OF THE LAND 241 

that the members of the second branch should vote 
per capita and not by states;* and notwithstanding 
the objection from Martin that this meant a de- 
parture from the idea of representation of the states, 
the motion was carried. Long as the small-state 
men had fought for equal representation, the party 
desiring a continuance of the Confederation and not 
the establishment of a national government were 
beaten; those were successful who, not objecting to 
a national government, wished in one of its members 
a means of restraint to protect the states in case of 
attack. If any one has the idea that the particular- 
ists believed they had succeeded in preventing the 
convention from forming a national government, he 
may well read Lansing and Yates's letter to the 
governor of New York,^ Luther Martin's ''Genuine 
Information,"^ the writings of Richard Henry Lee* 
or of George Clinton.'^ The friends of the conven- 
tion's work, in their defence, felt compelled to insist 
on the idea that the Constitution provided for a 
system only partly national. 

Before decision was reached on the great com- 
promise, a few fundamental ideas had been ham- 
mered out in debate. Little by little the principle 
had been made clear that in all the arrangements 
of the new order the state and the national govern- 
ments should be kept free from interference. This 

* Madison, Writings (HnnVs ed.) , IV., 45 ; Elliot, Debates,!., 215. 
'Elliot, Debates, I., 480-482. ' /6t(i., 344-389. 

* Ford, Pamphlets on the Constitution, 277-325. 

* Ford, Essays on the Constitution^ 248. 



242 CONFEDERATION AND CONSTITUTION [1787 

thought had found vague expression in the early 
days, but was brought out more clearly in later dis- 
cussions. Those who knew the unwholesome rival- 
ries of the Confederation had been taught that a 
government as such has its own pride and foibles, 
its own self-love; and that if the new government 
was to succeed, it must not depend on execution by 
state officials but be able to work its will without 
reference to the governments of the states, im- 
aifected, indeed, by the presence of the states. 
In some measure this idea was involved in the 
proposition to establish a general government; but 
a general government could have been established 
on a different principle, its machinery in contact 
with the machinery of the states. Such confedera- 
cies have in our day been set up in Switzerland and 
Germany. 

In working out this idea of separation, there came 
out clearly certain foundation principles, which were 
most remarkable and far-reaching, the essentials of 
a system of imperial government new to the world : 
the general government was to legislate for men 
and not for states ; it was to rest directly on its own 
citizens ; it was to legislate directly and immediately 
for them. Over each citizen there were to be two 
governments. In a powerful speech, as early as 
June 25, Wilson explained the significance of the 
proposed system. He spoke of the "twofold re- 
lation in which the people would stand," first as 
citizens of the general government, and second as 



1787] LAW OF THE LAND 243 

citizens of their particular states. "The General 
Government was meant for them in the first capacity : 
the State Governments in the second. Both Govern- 
ments were derived from the people — ^both meant for 
the people — ^both therefore ought to be regulated on 
the same principles. The same train of ideas which 
belonged to the relation of the Citizens to their State 
Governments were applicable to their relation to the 
General Government and in forming the latter, we 
ought to proceed, by abstracting as much as possi- 
ble from the idea of the State Governments. With 
respect to the province and object of the General 
Government they should be considered as having 
no existence." ^ Wilson put forth this argument in 
opposition to the notion of election of senators by 
state legislatures. It is true that that method of 
election was finally adopted; but in the scheme 
worked out by the convention this was almost the 
only variation from the principle that he was ad- 
vocating. 

This new political idea, which Wilson thus clearly 
explained, did not involve the establishment of a 
national government which was to be superior to the 
state governments. There was evidently to be a 
distribution of political authority, and each govern- 
ment in its peculiar sphere was to exercise power, 
not one over the other, but directly and without 
mediation on its own citizens. Strange, perhaps, 

^Madison, Writings (Hunt's ed.), III., 279; see also King, 
Life and Cor res p. of King, I., 607. 



244 CONFEDERATION AND CONSTITUTION [1787 

that these simple thoughts were so often to be for- 
gotten, if indeed they were fully understood, by 
combative statesmen of the future. But stranger 
still was the clear vision, the power of sober thought, 
which enabled the leaders of the convention to learn 
so well the teaching of the eleven distracted years 
since America had declared her independence. For 
these principles of political activity were new in the 
world's history, and these men were engaged in 
solving a problem of imperial organization in the 
presence of which the statesmen of England had 
shown neither comprehension nor insight. 

This notion of the relationship of government to 
the individual was so clearly v/orked out that the 
delegates began to see that if the principle were 
fully applied there was no need of the coercion of 
states. Each of the three plans presented had in 
one form or another proposed coercion of delinquent 
states.* But the notion of using force against 
a state became more and more objectionable, and 
it was seen that there was no need of coercing states 
if individuals could be reached directly. 

Soon after the convention adjourned, Madison, in 
writing to Jefferson, gave the reason for omitting 
from the Constitution a provision authorizing the 
central government to call forth the force of the 
Union against a delinquent state: it was omitted 

* Madison, Writings (Hunt's ed.), III., 19, 170; A. C. Mc- 
Laughlin, "Sketch of Pinckney's Plan for a Constitution," in 
Amer. Hist. Review, IX., 746. 



1787] LAW OF THE LAND 245 

because a much more reasonable and efficacious plan 
was devised. " It was generally agreed," he wrote, 
" that the objects of the Union could not be secured 
by any system founded on the principle of a con- 
federation of Sovereign States. A voluntary ob- 
servance of the federal law by all the members could 
never be hoped for. A compulsive one could 
evidently never be reduced to practice, and if it 
could, involved equal calamities to the innocent 
and the guilty, the necessity of a military force, 
both obnoxious and dangerous, and, in general, a 
scene resembling much more a civil war than the ad- 
ministration of a regular Government. Hence was 
embraced the alternative of a Government which, 
instead of operating on the States, should operate 
without their intervention on the individuals com- 
posing them ; and hence the change in the principle 
and proportion of representation. ' ' * In other words, 
to coerce states is to make war — justifiable under 
an agreement between sovereign states, but out of 
place when a government is acting on its citizens. 
A government enforces law. Of course, in the en- 
forcement of law, troops may be needed, and the 
Constitution therefore gave authority for calling 
forth the militia to execute the laws of the Union, 
suppress insurrections, and repel invasion. 

Both the Virginia and the Pinckney plans ^ pro- 
posed that the central authority should have the 

* Madison, Letters (ed. of 1865), I., 344. 
^ Amer. Hist. Review, IX., 744. 



246 CONFEDERATION AND CONSTITUTION [1787 

right to negative state laws, and, as we have already 
seen, this principle was at first adopted by the con- 
vention in committee of the whole. Many of the 
members felt that only by granting such a power 
to the central authority could there be any as- 
surance that the states would do their duty and 
play their part in the new order. But this, like the 
right to coerce, was abandoned. The whole prin- 
ciple of the veto was contradictory to the theory, 
the underlying notion of the Constitution, as it took 
form and meaning in the minds of its makers ; there 
could logically be no law — that is, no state act really 
legal — if it contravened the Constitution and if the 
Constitution itself be law. Sherman saw this most 
surely. "Such a power," he said, referring to the 
veto in the hands of the national authorities, ' * in- 
volves a wrong principle, to wit, that a law of a 
State contrary to the articles of the Union would if 
not negatived, be valid, and operative." * 

We have seen that the rejected New Jersey plan 
contained a provision concerning the binding effect 
of the laws of the Union. After the resolution for 
granting the right to veto had been voted down, 
Luther Martin brought forward the old proposition 
of the New Jersey plan, and it was unanimously 
adopted.^ On the basis of this proposition was built 
up the central clause of the Constitution, which was 
to enable the new system to work smoothly and 

» Madison, Writings (Hunt's ed.), III., 449; see also 447. 
* Ibid., 449. 



1787] LAW OF THE LAND 247 

without administrative friction, was to provide a re- 
straint upon the states, to maintain the dignity of 
the central government, and to preserve a compli- 
cated and delicate political system by peaceful and 
judicial processes. In its finished form; as it stands 
in the Constitution, this clause reads: ''This Con- 
stitution, and the Laws of the United States which 
shall be made in Pursuance thereof ; and all Treaties 
made, or which shall be made, under the Authority 
of the United States, shall be the supreme Law of the 
Land ; and the Judges in every State shall be bound 
thereby, any Thing in the Constitution or Laws of 
any State to the Contrary notwithstanding." 

This clause may be called the central clause of the 
Constitution, because without it the whole system 
w^ould be unwieldy, if not impracticable. Draw out 
this particular bolt, and the machinery falls to pieces. 
In these words the Constitution is plainly made 
not merely a declaration, a manifesto, dependent for 
its life and usefulness on the passing will of states- 
men or of people, but a fundamental law, enforce- 
able like any other law in courts. For the first time 
in history, courts are called upon by the simple 
processes of administering justice, in cases where 
private right or personal injury is involved, to up- 
hold the structure of the body politic and the prin- 
ciples of the Constitution. In this clause, moreover, 
the salient and characteristic fact of the whole 
American constitutional system was made manifest, 
the fact that, in accordance with the theory of 



248 CONFEDERATION AND CONSTITUTION [1787 

organization, the people make the law, and all acts 
of legislation must be in conformity with this law. 
For the most telling word is not ''supreme" but 
"law." And thus the men at Philadelphia were, in 
theory, completing the historical process that had 
been working out in English history since the meet- 
ing of the barons with John Lackland at Runny- 
mede. The long effort to establish a government 
of law and not of men was reaching its logical con- 
clusion in an effort to make the government itself 
dependent on fundamental law. 

We should notice chiefly that this principle was of 
especial value in solving the perplexing problem of 
the time. If the states had voluntarily and with 
good-himior lived up to their obligations under the 
old system, all might have gone well. But they 
would not. Under the Constitution, therefore, the 
new government was to act by its own laws on its 
own citizens; and in addition the states were to be 
placed in a distinctly legal relationship, and were to 
be bound to recognize their duties as legal duties ; the 
Constitution was to be the law of the land, enforce- 
able in state courts, to be applied by state judges, 
to be appealed to by state citizens asking their own 
judges for justice. The states were not to be ordered 
by the central government to erase acts from their 
statute-books, or directed to do this or not to do 
that; they might pass illegal acts, but their own 
judges in the quiet of their own court-rooms, at the 
instance of private suitors asking for their rights, 



1787] LAW OF THE LAND 249 

were to be called on to disregard all state acts con- 
trary to the law of the land. Had the convention, 
instead of finding this admirable idea, bestowed on 
the central authority the right to veto laws, untold 
friction would have resulted; it is difficult to see 
how the Constitution could have lasted a decade. 

The Constitution was to be binding as law on state 
officers and to be applied by state judges; it was 
likewise, of course, to bind the central government 
in all of its branches. If the national government 
overstepped its authority, it also should be re- 
strained by the courts, by the refusal of judges to 
recognize invalid enactments or illegal official action. 
Concerning the advisability of establishing a fed- 
eral judiciary there was from the beginning of the 
convention's work a general agreement ; ^ but as to 
the structure and fimctions of the department there 
w^as much difference of opinion. Provision for the 
system at length reached satisfactory form; a sep- 
arate and distinct department of government, one 
supreme court and such inferior courts as Congress 
might establish, the judges to hold office during good 
behavior, the court to have a wide jurisdiction. 

Here again we must especially remark the power, 
the duty, of the federal courts to recognize the Con- 
stitution as law, and thus with the state courts to 
preserve the Constitution, to maintain the distribu- 

* Virginia plan, in Madison, Writings (Htint's ed.), III., 19; 
New Jersey plan, ibid., 169; Pinckney plan, in Amer. Hist. Re-- 
view, IX. 745. 



250 CONFEDERATION AND CONSTITUTION [1787 

tion of power between state and nation, and to en- 
force its obligations. With regard to state courts, 
the Constitution contented itself with saying that 
the Constitution as law was to be binding on state 
judges ; in prescribing the jurisdiction of the federal 
courts there was in addition the statement that they 
were to have cognizance of cases " arising under this 
Constitution." Possibly the framers did not con- 
sciously intend by these words expressly to declare 
that the federal courts would have the right in all 
cases to declare a law of Congress void because ex- 
ceeding Constitutional limits. As to that it is hard 
to speak with absolute assurance. Certainly the 
Constitution was by this clause recognized and pro- 
claimed as law, and we may at least assert that by 
force of logic, if not because of the full conscious pur- 
pose of the members of the convention, this power 
was bestowed — the power to declare of no effect an 
act of Congress contrary to the law of the land.* 

The delegates at Philadelphia must have known 
that the new state constitutions were regarded as 
law by the state courts. When the Federal Con- 
vention assembled, the nattire of a written constitu- 
tion, emanating from an authority outside the gov- 
ernment, had already been made manifest by several 
judicial decisions. In New Jersey, as early as 1780, 
the court refused, in the case of Holmes vs. Walton, 
to regard as valid an unconstitutional act of the 

* Brinton Coxe, Judicial Power and Unconstitutional Legisla- 
tion, especially pt. iv. 



1787] LAW OF THE LAND 251 

legislature.* Two years later a similar doctrine 
was laid down in Virginia, and in 1786, as we have 
already seen, the Rhode Island court announced 
the same principle. Just as the convention was 
assembling at Philadelphia, the superior court of 
North Carolina distinctly asserted that the legis- 
lature could not by passing any act ** repeal or alter 
the constitution, because if they could do this, they 
would at the same instant of time, destroy their own 
existence as a legislature, and dissolve the govern- 
ment thereby established." ^ 

The preservation of the Constitution, the mainte- 
nance of the authority, laws, and treaties of the 
national government, was of the deepest importance 
to the delegates at Philadelphia; but they did not 
establish a special tribimal, as a body of censors, or a 
special court. to declare state or national acts void. 
All that was necessar}^ was to see that the Constitu- 
tion was made law and had the qualities of a funda- 
mentaliaw. It would then be the duty, not of the 
supreme court alone, but of all state and national 
courts, to recognize it as law and to apply it in con- 
troversies coming before them. This, then, was a 
great discovery, and not less great because it re- 
quired no novel and unfamiliar machinery, no prin- 
ciple altogether new and strange. The courts, act- 

*- Austin Scott, "Holmes vs. Walton," in Amer. Hist. Review, 
IV., 456. 

' Coxe, Judicial Power, 221, 251; Thayer, Cases on Con- 
stitutional Law, pt. i., 55-80; McRee, Life and Corresp. of Iredell^ 
II., 169, 170, 172. 



252 CONFEDERATION AND CONSTITUTION [1787 

ing as courts have always acted in distributing jus- 
tice to litigants, were to declare the law and decide 
cases accordingly, by the well-known methods of 
English and American jurisprudence; they were 
simply expected in all controversies to apply, when 
need be, the Constitution as the supreme law of the 
land. 



CHAPTER XVI 

FURTHER COMPROMISES AND THE CONCLUSION 
OF THE CONVENTION'S WORK 

(1787) 

WHILE these fundamental problems were being 
settled, others scarcely less important were 
also discussed. Of course to determine the extent 
of the new government's power, or, rather, the 
number of its powers, occupied much time and 
proved a matter of difficulty. The task was "to 
draw a line of demarkation which would give to 
the General Government every power requisite for 
general purposes, and leave to the States every 
power which might be most beneficially adminis- 
tered by them." * To draw this line with accuracy 
was as desirable as it was difficult; on the precise- 
ness with which the distribution was made de- 
pended, in no small degree, the permanence and 
effectiveness of the new order. 

The resolutions on this subject, as first adopted, 
were general in their terms, providing that the 
national legislature ought to have the powers of the 
old Congress and the right to legislate in all cases 

* Madison, Letters, L, 344. 

VOL. X — l8 253 



254 CONFEDERATION AND CONSTITUTION [1787 

beyond the competence of the individual states.* 
But these general words were in time abandoned for 
definite statements; a number of distinct powers 
were specifically • granted to the national govern- 
ment; it was empowered to coin money, to es- 
tablish post-offices, to borrow money, to establish 
a uniform rule of naturalization, to define and 
punish piracy on the high seas, to declare war, to 
raise and support armies, to provide and maintain 
a navy, to perform certain other duties of a general 
character, and "to make all Laws which shall be 
necessary and proper for carrying into Execution the 
foregoing Powers." In thus assigning powers to 
the national government, the convention carried out 
the principle of distributing authority between two 
different kinds of government, of which each was to 
have its own sphere of political activity. 

Whenever the question of representation arose, 
difficulties disclosed themselves, partly because of 
the varied character of the states, partly because 
the delegates naturally looked after the political 
interests of their constituents. Though it was de- 
cided that there should be proportional representa- 
tion in the lower house, to agree on the general 
basis of representation was not easy. If the number 
of representatives was made to depend on the 
population alone, the result, some of the delegates 
believed, would be disastrous; for they greatly 
feared the increasing influence of the western states 
•Elliot, Debates, I., 181. 



1787] COMPROMISE AND CONCLUSION 255 

that might soon be formed beyond the mountains. 
Jealousies between the north and south, moreover, 
came to light and caused anxiety. The northern 
men could see no propriety in counting slaves in 
the basis of representation; on the other hand, the 
southern delegates, especially those from South 
Carolina and Georgia, were determined that their 
slaves should be counted. The southern states be- 
lieved, too, that they were gradually outstripping the 
north in wealth and population, and that that fact 
should be taken into account in the assignment of 
representation and in the plans for a gradual in- 
crease. **The people and strength of America," 
said Butler, of South Carolina, "are evidently bear- 
ing Southwardly and Southwestwardly." ^ After the 
New York delegates had left, and before the ap- 
pearance of the New Hampshire men, there were only 
four states north of Mason and Dixon's line on the 
floor of the convention, while there were six southern 
states. It was possible, therefore, for the southern 
states, if they chose, to decide all questions of 
representation to suit themselves. 

Had all the members believed that men, as such, 
were entitled to representation, the problem would 
still have been perplexing; but democratic doctrine 
had not yet advanced so far. The delegates be- 
lieved that society existed for the preservation of 
property,^ and that the wealth of the respective 

* Madison, Writings (Hunt's ed.), III., 423; see also ibid., 405. 

* Ibid., ^6^, ^64, 366,367. 



256 CONFEDERATION AND CONSTITUTION [1787 

states should therefore be taken into account in 
preparing any scheme of representation. 

At the very time when the despised Congress at 
New York was framing the Ordinance of 1787, the 
delegates at Philadelphia were soberly discussing 
the propriety of discriminating against the growing 
population of the Mississippi Valley. That states 
should grow up in the west could not be prevented ; 
but perhaps the Constitution might be so framed 
as to insure their permanent political inferiority. 
Strange that men who had fought through the 
war should have entertained toward the new land 
something of that exalted notion of superiority 
which lay at the bottom of English incapacity in her 
dealings with her colonies! Men like Gerry ^ and 
the hard-fighting Morris had no patience with the 
frontier, forgetting, that, but a few years before, 
Pennsylvania was a wilderness, and that to the 
imagination of Europeans of their own day Amer- 
icans were little above the savage. Morris de- 
clared that "the Busy haunts of men not the re- 
mote wilderness, was the proper school of political 
Talents. If the Western people get the power into 
their hands they will ruin the Atlantic interests. 
The Back members are always most averse to the 
best measures."^ Gerry was supported by King 
in a motion that '*to secure the liberties of the 
States already confederated," the number of rep- 

* Madison, Writings (Hunt's ed.), III., 425. 

* Ibid., 401, 402; see also 382. 



1787] COMPROMISE AND CONCLUSION 257 

resentatives sent to the first branch of the national 
legislature by the new states should never exceed 
the number sent by the old.* 

Fortunately, such narrowness did not prevail, 
though Massachusetts, Connecticut, Delaware, and 
Maryland voted for the motion ; for there were some 
men who could read America aright and knew that 
her growth and prosperity waited only on justice. 
"Ought we to sacrifice," asked Mason, ''what we 
know to be right in itself, lest it should prove fa- 
vorable to States which are not yet in existence?" ^ 
"The majority of people," said Wilson, in a spirit 
more becoming the democratic nineteenth century 
than his own day, "wherever found ought in all 
questions to govern the minority. If the interior 
Country should acquire this majority, it will not only 
have the right, but will avail itself of it whether 
we will or no. This jealousy misled the policy of 
Great Britain with regard to America."^ 

The northern men did not say much against the 
general system of slavery, but they doubted the 
propriety of counting the slaves in the basis of 
representation. The whole matter was complicated : 
to agree that slaves as human beings were entitled to 
the suffrage and to choose delegates to Congress 
was of course beyond reason, and no such argument 
was indulged in ; but if members in any community 
were an indication of its wealth, and if government 

* Madison, Writings (Hunt's ed,), III., 425. 
' Ibid., 395. » Ibid., 423. 



258 CONFEDERATION AND CONSTITUTION [1787 

was supported by wealth and existed to protect 
property, there might be some ground for demanding 
that the whole population, black and white alike, 
should determine the number of representatives 
from any state. The delegates from South Carolina 
insisted that all the slaves should be counted,* and 
were supported, when a vote was taken, by Delaware 
and Georgia.^ Williamson, of North Carolina, ad- 
vocated the counting of three-fifths of the slaves, 
but at first this motion was defeated.^ Doubtless 
this proposition was brought forward by Williamson 
because, four years before. Congress had proposed 
that in determining the amount to be paid by the 
respective states three-fifths of the slaves should be 
counted. 

After this subject of the proper basis of repre- 
sentation had been for some time discussed by the 
convention, with little apparent prospect of reaching 
a conclusion, Gouvemeur Morris moved to add to 
the clause empowering the legislature to vary the 
representation according to the principle of wealth 
and numbers a ''proviso that taxation shall be in 
proportion to Representation."^ This motion was 
made when the propriety of limiting the political 
influence of the west and the question as to whether 
slaves should be counted were both undetermined. 
It was, in fact, a two-edged sword, but it was neces- 

» Madison, Writings (Hunt's ed.), HI-, 397- 
' Elliot, Debates, I., 199. ^ Ibid., 200. 

* Madison, Writings (Hunt's ed.), HI., 409. 



1787] COMPROMISE AND CONCLUSION 259 

sary to grasp it by the blade. If the boisterous west 
were to be given representation in accordance with 
numbers, the new states, though relatively poor, 
must pay taxes according to population; if the 
southern men demanded that their slaves be count- 
ed for representation on the grotmd that they 
created wealth, they must agree to pay taxes ac- 
cordingly. South Carolina readily agreed to this 
as just, but asked, nevertheless, that all her slaves 
be enumerated. From the logic of the situation, 
in fact, there could not be much objection to Morris's 
proposition; but a practical difficulty was brought 
out by Mason, who pointed out that the new 
government might be embarrassed by the applica- 
tion of that principle ; for Congress might be driven 
to the plan of requisitions, inasmuch as customs 
dues and like levies could not be thus proportioned. 
The resolution was therefore altered and made to 
apply to direct taxation only.^ In this form the 
principle was adopted ; direct taxes and representa- 
tion alike were to be proportioned to population. 

This decision, however, did not entirely end the 
trouble. Davie, of North Carolina, said it was high 
time ''to speak out"; North Carolina, he said, 
would never enter the Union on any terms that did 
not provide for counting at least three-fifths of the 
slaves. ''If the Eastern States meant therefore to 
exclude them altogether the business was at an 

* Elliot, Debates, I., 202; Madison, Writings (Hunt's ed.), HI., 
411. 



26o CONFEDERATION AND CONSTITUTION [1787 

end." It was not the extreme southern states 
alone that demanded some recognition of the black 
population; even Randolph, lamenting " that such 
a species of property existed," urged strongly ''that 
express security ought to be provided for including 
slaves in the ratio of Representation."^ The three- 
fifths proposition, supported by the fact that the old 
Congress had already hit upon the fraction as in- 
dicative of a comparative productive power, seemed 
a reasonable compromise, and was at length adopted.* 

Of course the plan was not acceptable to all, but 
some conclusion had to be reached, and men had 
to accept unwelcome results. Wilson, for example, 
though apparently voting for this compromise, saw 
too clearly and too simply to avoid its difficulties; 
his clear head was perplexed with the same questions 
that were to bother men in the coming generations. 
''Are they admitted as Citizens?" he asked in the 
course of the debate; "then why are they not ad- 
mitted on an equality with White Citizens ? are they 
admitted as property? then why is not other prop- 
erty admitted into the computation?" He admit- 
ted that such difficulties "must be overruled by the 
necessity of compromise." ^ 

The diversity of interest between the northern 
and the southern states was not shown very plainly 
in the early debates, especially during the time when 

* Madison, Writings (Hunt's ed.), III., 411, 413. 

'Elliot, Debates, I., 202, 203. 

■ Madison, Writings (Hunt's ed.). III., 4Q7. 



1787] COMPROMISE AND CONCLUSION 261 

the states south of the Potomac were co-operating 
with Massachusetts and Pennsylvania to establish 
a national Constitution based on popular representa- 
tion. At a later time, however, there arose sharp 
differences of opinion, and the sectional opposition 
stood out with dangerous distinctness. Butler went 
so far as to declare that he considered the inter- 
ests of the southern and eastern states "to be as 
different as the interests of Russia and Turkey."* 
This diversity showed itself chiefly in connection 
with two questions: should Congress regulate com- 
merce freely and pass a navigation act if it chose? 
should the states be allowed to import slaves? , 

The history of a generation had plainly taught 
that some general regulation of commerce was a 
necessity. In the days before the war Americans 
and Englishmen had much dispute as to the right of 
Parliament to regulate trade, but the old Congress 
itself had declared its willingness,'' from the necessity 
of the case," ^ if not from law, to accept such reg- 
ulatory acts if passed in good faith by the mother- 
country. The disorder and confusion of the years 
after the announcement of independence ought to 
have brought home to all the folly of relying, for a 
proper management of commercial relations, on the 
caprice of the individual states. Every man that 



* Madison, Writings (Hunt's ed.), IV., 329. 

' Declaration and resolves of the First Continental Congress, 
October 14, 1774; Journals of the Continental Congress (Ford's 
ed.), I., 68. 



262 CONFEDERATION AND CONSTITUTION [1787 

had learned anything from experience had learned 
this lesson pretty thoroughly, and the convention 
did not long hesitate to bestow on Congress the 
general right to regulate commerce. But the old 
jealousies were not all cleared away; some of them, 
indeed, were very much alive, and the southern 
delegates were fearful that the unrestricted right to 
pass navigation laws would be used to their detri- 
ment and to the advantage of the commercial states 
of the east. "The Southern States," said Mason, 
"are the minority in both Houses. Is it to be 
expected that they will deliver themselves bound 
hand and foot to the Eastern States, and enable 
them to exclaim, in the words of Cromwell on a 
certain occasion — * the lord hath delivered them into 
our hands'?"^ As for the eastern states, on the 
other hand, Gorham asserted that they had no 
motive for union but a commercial one. 

Concerning the slave-trade, too, there was much 
difference of opinion. The New England men were 
divided, the leading men from the middle states, in- 
cluding Virginia, Maryland, and Delaware, were 
outspoken in their opposition to the traffic and 
unsparing in their condemnation of slavery. The 
southern states insisted on their right to import 
slaves. Charles Pinckney declared that if the 
southern states were let alone they would probably 
of themselves stop importation, but the attempt 
to take away the right would produce serious ob- 
» Madison, Writings (Hunt's ed.), IV., 273, 329. 



1787] COMPROMISE AND CONCLUSION 263 

jections to the Constitution. With the same breath, 
however, he declared that if slavery were wrong 
it was justified by the example of all the world: 
*' In all ages one half of mankind have been slaves." ^ 
C. C. Pinckney asserted that South Carolina and 
Georgia could not do without slaves, and if Congress 
were given the power to prohibit the slave-trade, 
such action would be an exclusion of South Carolina 
from the Union. Williamson, of North Carolina, ex- 
pressed himself in the same way; and Rutledge as- 
serted that the three southern states would ' ' never 
be such fools as to give up so important an interest." 

With deep feeling, with force of sincere con- 
viction, the men from Maryland and Virginia an- 
swered the temporizing argument from the states of 
the farther south. Luther Martin, with a breadth 
of national feeling one might not have expected, 
said that '' slaves weakened one part of the Union 
which the other parts were bound to protect," and 
that to have a clause in the Constitution permitting 
the importation of slaves was inconsistent with the 
principles of the Revolution and dishonorable to the 
American character.^ Madison thought it wrong 
to admit into the Constitution " the idea that there 
could be property in men." ^ 

The strongest denunciation of the system came 
from George Mason, of Virginia. He called on the 
convention to give the general government the 

* Madison, Writings (Hunt's ed.). IV., 268. 
^ Ibid., 264. ^ Ibid., ^06. 



264 CONFEDERATION AND CONSTITUTION [1787 

right to prevent the increase of slavery. He re- 
minded his hearers that the west was already call- 
ing for slaves to develop the new lands of the in- 
terior, and would fill that country with black men 
if they could be brought through South Carolina 
and Georgia. " Slavery discourages arts and manu- 
factures," he declared, with great earnestness. ** The 
poor despise labor when performed by slaves. . . . 
They produce the most pernicious effect on manners. 
Every master of slaves is born a petty tyrant. 
They bring the judgment of heaven on a Country. 
As nations can not be rewarded or punished in the 
next world they must be in this. By an inevitable 
chain of causes and effects providence punishes 
national sins, by national calamities." He was 
sorry that the merchants of the northeast " had 
from a lust of gain embarked in this nefarious 
traffic." ^ Strong as these words were, spoken with 
sincerity by a man who was himself a slave-holder, 
a proprietor of one of the stately domains south 
of the Potomac, where white masters with large 
retinues of blacks lived in a sort of rude magnifi- 
cence, his warning was prophetic but not con- 
vincing. The men of the far south would not 
listen, and, it may be added, some of the New-Eng- 
landers^ were not deeply interested in the proposal 
to prohibit what Mason had called the " nefarious 
traffic." 

* Madison, WriHngs (Hunt's ed.), IV., 266. 
"^ Ibid., 265, 267. 



1787] COMPROMISE AND CONCLUSION 265 

The difficulty of the problem was great: if Con- 
gress were given power to exclude slaves, at least 
two states would refuse to accept the Constitution ; 
on the other hand, as Randolph pointed out, if 
Congress were forbidden to prohibit the importa- 
tion, the clause "would revolt the Quakers, the 
Methodists, and many others " in the northern states. 
With a hope of finding some means of escape, a 
committee was appointed, and to it was referred 
both the problem as to whether the slave-trade 
should be prohibited and as to what limitation, 
if any, should be placed on the power of Congress 
to pass navigation acts/ The result was a com- 
promise which was embodied in the Constitution. 
Congress was to be allowed to pass a navigation act 
under its general power to regulate commerce; but 
the importation of such ''persons" as the several 
states then existing should think fit to admit was 
not to be prohibited before the year 1808. Con- 
gress might, however, levy a tax or duty not ex- 
ceeding $10 ''for each person." ^ 

Thus, for the time being, the question was settled ; 
but Mason's eloquent words were to prove pro- 
phetic ; the young west, south of the Ohio, was to be 
burdened by slaves. And, though the rivalry be- 
tween the agricultural south and the commercial east 
might for a moment be obscured by compromise, 
it was not easy to reconcile interests that were in 

^ Madison, Writings (Hunt's ed.), IV., 272, 273. 
2 Ibid., 292, 303, 306. 



266 CONFEDERATION AND CONSTITUTION [1787 

apparent, if not in real, economic conflict. This 
rivalry had already shown itself in the problems 
of the Confederation; it was to serve as one chief 
reason for pa ty antagonism in the next two dec- 
ades, to be the source of serious opposition to the 
general government forty years after the convention 
had finished its work, to furnish fuel for flames of 
sectional hatred long after every member of the 
convention was in his grave, and to underlie the 
political strife and recrimination that ended in 
civil war. This rivalry or this misunderstanding 
should be borne in mind in interpreting the history 
of the first hundred years under the new govern- 
ment. 

Of all the problems of the convention not one 
caused greater perplexity than determining the 
powers of the president and the method of his 
election.* This fact should not surprise us if we 
stop to consider how diflicult the task of providing 
for an executive head of a nation, who should have 
dignity and authority and yet be not overpower- 
f ul ; who should work harmoniously with the other 
branches of government, and yet not be the creature 
of the legislature or of either chamber; who should 
be so hemmed about by republican restrictions as 
not to affright the populace when the veil was 
lifted from the work of their delegates. 

The convention was bent on carrying into effect 

'Wilson in the Pa. convention, in Elliot, Debates, II., 511; 
see also Madison, Writings (Hunt's ed.), IV., 367. 



17S7] COMPROMISE AND CONCLUSION 267 

the principle that the three departments of govern- 
ment should be separate and independent.^ With 
more or less accuracy that principle had already 
found its formulation in state constitutions, but 
to apply it to the national government was, never- 
theless, not easy, chiefly, perhaps, because there 
was difficulty in discovering a suitable method of 
choosing the president. In fact the convention 
had on its hands a delicate task; it must hit on 
a method of adjusting the departments so nicely 
and yet with such strength that each could maintain 
itself for years to come, while the government per- 
formed its functions smoothly, safely, and efficiently. 
The result was, as we know, the establishment of 
what publicists now call the presidential form of 
government, one of the two great and successful 
forms of popular national government now in use 
in the civilized world. We need not wonder, then, 
that the problem was perplexing almost beyond 
compare, and that the delegates debated long and 
passed many resolutions, only to rescind them 
again. 

On twenty-one different days the general subject 
of executive office was under discussion ; and on the 
method of election alone over thirty distinct votes 
were taken.' If the executive were to be chosen by 
Congress, or by either branch, there was a likelihood 

* Madison, Writings (Hunt's ed,), IV., 7. 

• Farrand, ** Compromises of the Constitution," in Amer. 
Hist, Review, IX., 486. 



268 CONFEDERATION AND CONSTITUTION [17S7 

that he would be yielding and dependent in his rela- 
tions with those to whom he owed his position. To 
trust the main body of the people seemed impossible. 
How could the common man judge who was fit to be 
president of the United States? To give the right 
to the legislatures of the states had its most obvi- 
ous dangers. Moreover, any plan which took into 
consideration the size of the respective states gave 
the large states an advantage over their smaller 
neighbors. Here, in other words, came up the old 
antagonism; here in the effort to decide the most 
difficult and delicate of questions, and to adjust a 
complex piece of political mechanism, the delegates 
were harassed by an imaginary antithesis between 
big and little states and by temporary or trivial 
considerations. 

After long consultation a committee was appoint- 
ed, which reported (September 4) in favor of having 
the president chosen by electors, a plan that had 
been several times discussed. Each state was to 
appoint, in such manner as its legislature might 
direct, a number of electors equal to the whole num- 
ber of its senators and representatives in Congress. 
Each elector was to vote for two persons, the one 
receiving the highest number, if a majority, to be 
president, the one receiving the next highest to be 
vice-president. This method gave an evident ad- 
vantage to the large states, but the report of the 
committee also provided that, in case the electors 
should not by their votes give a majority to any one 



1787] COMPROMISE AND CONCLUSION 269 

person, the choice of president from the five highest 
on the list should devolve upon the Senate ; likewise 
the Senate should choose one of two receiving a 
majority and an equal number of votes. By this 
plan it was supposed the election, in the first in- 
stance, would devolve on persons qualified to have 
opinions and express them, and yet would not mag- 
i nify the authority of any official body in the states 
or of either house of Congress. In this way also the 
power of the large states was in a measure recognized, 
for the larger the state the greater the number of 
electors. The plan, moreover, was not without its 
advantages for the small states, since the alternative 
choice might devolve on the Senate, where the 
states were equally represented; and the delegates 
seemed actually to have believed that the electors 
in man}^ if not in the majority of cases, would not 
be in sufBcient agreement to give any person a 
majority.* 

This power of ultimate choice would, however, 
greatly increase the influence of the Senate, which 
had enough without it, and this was a real objection. 
Wilson, not generally fearful of authority, pointed 
to the Senate^s power over appointments and the 
making of treaties and its right to try impeach- 
ments. ** According to the plan as it now stands," 
he said, "the President will not be the man of the 
people as he ought to be, but the minion of the Senate. 
He cannot even appoint a tide-waiter without the 

* Madison, Writings (Hunt's ed.), IV., 374, 383. 



2 70 CONFEDERATION AND CONSTITUTION [1787 

Senate.*'* Apparently influenced by such consid- 
erations as these, the right to select the president, 
in case the electors failed to choose, was transferred 
from the Senate to the House of Representatives, 
with the proviso that in the House each state should 
have one vote. Of the ignorance of the fathers 
concerning political parties, this naive compromise 
with all its complexities stands as a golden example. 
It did not occur to them that in a few 3^ears men 
from New Hampshire to Georgia would be deciding 
on candidates for party purposes, that the party 
reins would reach into the remotest comer of the 
land, and that before long these electors would be 
but men of straw, mere pieces of machinery, to 
register the will of the people or their political 
masters. 

As the convention neared the end of its labors its 
perplexities did not diminish. The summer had gone 
and the early days of September passed, and yet, after 
four months of toil and of remarkable patience, the 
delegates found themselves dissatisfied. No one 
seemed wholly content, and those who labored most 
earnestly could only say that the instrument before 
them was the result of their best efforts and ought 
to be adopted by the people. They might all have 
said, with Touchstone, ** An ill-favored thing, Sir, but 
mine own." Franklin urged imanimity of action, 
even if the Constitution did not suit everybody in all 
its parts. *' The older I grow," he said, ** the more apt 

* Madison, Writings (Hunt's ed.), IV., 381. Cf. 382. 



1787] COMPROMISE AND CONCLUSION 271 

I am to doubt my own judgment," and he pleasantly 
told of "a certain french lady" — perhaps one of the 
many who had listened to his own wisdom in his 
conquering days in France — who in a dispute with 
her sister said, " I don't know how it happens, Sister 
but I meet with nobody but myself, that is alwa3^s 
in the right — // n'y a que moi qui a ioujovirs raison,'' * 

Franklin's pleasantry' was of possible service, but 
it did not win all the discontented. The new Con- 
stitution must go forth to be criticised by some who 
had helped to make it. Most of the delegates, it is 
true, were ready to sign the finished instrument and 
advocate adoption, although not entirely satisfied. 
Even Hamilton, who had not taken an important 
part and who openly expressed his dislike of the 
system, was ready to acquiesce, declaring that it 
was impossible *'to deliberate between anarchy and 
Convulsion on one side, and the chance of good " ^ on 
the other. 

But some of the delegates were not so reasona- 
ble. Martin, who had stayed till near the end, went 
home to attack the Constitution with his custom- 
ary vehemence. Mason remained to the end, but, 
vigorously protesting against the powers of Con- 
gress by a mere majority to pass navigation acts, a 
power which ''would enable a few rich merchants" 

\ Madison, Writings (Hunt's ed.), IV., 473. A similar ex- 
pression is quoted in The Letters of Horace Walpole (Cunning- 
ham's ed.), IV., 415, where it is attributed to the Duchess de 
jLa Ferte. 

' Madison, Writings (Hunt's ed,), IV., 478. 



272 CONFEDERATION AND CONSTITUTION [1787 

of the northern cities to monopolize the staples of 
the southern states,* refused to accept the Constitu- 
tion or to advocate its adoption. Randolph and 
Gerry also protested and declined to sign. Alto- 
gether seventy-three delegates had been appointed 
to the convention. Of these, fifty -five were at one 
time or another in attendance ; but only thirty -nine 
signed the finished instrument. Of the twelve reg- 
ular members, not counting Martin, who were not 
in attendance at the end and did not sign, seven are 
known to have approved of the Constitution and 
three are known to have disapproved.^ 

For the purpose of sending out the Constitution 
supported by apparent unanimity, and also if pos- 
sible to win the hesitant, Franklin proposed as a 
form of ratification by the convention, "Done in 
Convention by the tmanimous consent of the States 
present.*'* This equivocal expression was adopted 
and the work of the convention finished on Septem- 
ber 17. Incomplete and inadequate as the men be- 
lieved it to be, there was hope in its lines, and the 
best among them could honestly ask the people to 
establish the work of their hands. 

The document to which the framers attached 
their names with mingled hopes and misgivings that 
September day in the old state -house in Phila- 
delphia has come to be looked on as one of the great 

* Madison, Writings (Hunt*s ed.), IV., 469. 
■ Amer. Hist. Assoc, Report, 190a, 157. 

• Madison, Writings (Hunt's ed.), IV., 475. 



1787] COMPROMISE AND CONCLUSION 273 

documents of the world's history; it is now the 
fundamental law of the oldest republic on earth; 
the government which it established has outlived 
dynasties and seen ancient governments totter; it 
has stood without destruction while England was 
abandoning her old-time aristocratic government, 
while France was making and remaking a series of 
constitutions, while Italy was unified and the Ger- 
man people were foimding a national organization, 
while the pope himself was deprived of his ancient 
temporal authority, while Spain, who at one time 
claimed nearly the whole of the New World, was 
losing her dominions and shrinking back into the 
old limits of the Iberian peninsula. 

The Constitution has sometimes been spoken of as 
if it were in all respects the creature of the men at 
Philadelphia, or as if it were, as Mr. Gladstone once 
said, " the most wonderful work ever struck off at a 
given time by the brain and purpose of man." * That 
in one sense the Constitution was made in four 
months' time is true; in four months a series of 
articles and sections were pieced together. In an- 
other sense it is not true; time made the American 
Constitution as it has made others of any moment. 
An artificial constitution, not the product of a 
people's life, can never have vitality, strength, or 
usefulness. The delegates at Philadelphia did not 
sit brooding over the chaos of the Confederation to 

»"Kin beyond Sea," in North Am. Review, CXXVIL, 185; 
Gleanings of Past Years, I., 212. 



274 CONFEDERATION AND CONSTITUTION [1787 

bring forth by their fiat a new government. The 
idea that they created institutions out of nothing- 
ness loses sight of the manner and the conditions 
of their work. Neither is it true that they copied 
European institutions, borrowing scraps here and 
there to patch up a system suited to their tastes. 
Some of them were students of law, familiar with 
Vattel, Locke, Montesquieu, and Blackstone. Some 
of them had read history to a purpose, and could 
cite the failures of past confederacies or draw illus- 
trations from the experiences of European states. 
But there is no evidence of borrowing or of slavish 
copying; for, while they were students and readers 
of history and knew that their own little experience 
was not the sum of knowledge, they were practical 
political workers, had for years studied the problems 
of forming governments, and had been acquainted 
with the great process of making state constitu- 
tions. The men of the generation that declared 
independence and formed new states were steeped 
in political theory as their great-grandfathers had 
been in theology, and for years they were engaged in 
the difficult process of adapting old institutions to 
new ideas, framing governments and laws that suited 
the economic, social, and moral conditions which the 
New World had produced. 

We might, therefore, expect to find from these 
experienced craftsmen, not a document hurriedly 
patched together, nor one taken in part from distant 
ages or strange climes, but an American document. 



1787] COMPROMISE AND CONCLUSION 275 

in its entirety new, but made up of parts that had 
found their places in the state organizations. If 
we look, then, for the origin of the Constitution, we 
find much of it in the failures of the Confederation, 
in the tribulations of eleven confused years when 
the nation was without a proper government and 
when distress and disorder and incompetence were 
showing the way to success; and much of it, too, in 
the state constitutions which had been drawn up 
by men familiar with colonial governments and ad- 
ministration. This old-fashioned colonial practice 
was not thrown aside when independence was de- 
clared, any more than a man throws aside his body 
or his brains when he emerges from boyhood to 
manhood. The work of constitution - making for 
the states was a work of adaptation, of enlarge- 
ment, of emphasis, not of creation; it registered 
growth. 

And thus it may be said that colonial history made 
the Constitution. Even in the division of authority 
between the states and the national government we 
see a readjustment of the old practical relationship 
between colonies and mother-country, a readjust- 
ment which was based in part on the imperfections 
of the old system but carried out the teachings of 
the Revolution. Even the essentially American 
notion, the notion that government is the agent 
of the people and must not transcend the law set 
by the people, was an outgrowth of the free society 
of a new world, had found its expression in the 



276 CONFEDERATION AND CONSTITUTION [1787 

theory of the Revolution, and had arisen in a 
country in which from time immemorial there 
had been no government possessed of all political 
power. And this only means, of course, that the 
Constitution of the United States took its root 
in the history of England; it was not borrowed 
by conscious imitation from England, it was a 
product of the forces of English history ; but it was 
shaped by American necessities, was framed by men 
who could learn lessons and use the material the 
tide of history washed to their feet. 



CHAPTER XVII 

THE CONSTITUTION BEFORE THE PEOPLE 
(1787-1788) 

WHEN the Constitution was finished it was sub- 
mitted to Congress, then in session at New 
York. A letter signed by Washington as president 
of the convention was likewise sent to Congress. 
He spoke of the difficulties that had confronted the 
delegates, of the necessity of a generous considera- 
tion for common interests, and of the Constitution 
as the result of a spirit of amity, mutual deference, 
and concession.* The members of Congress did not 
give the new plan an enthusiastic welcome. Richard 
Henry Lee was ready for immediate attack, and he 
was supported by Dane, of Massachusetts, and 
Melancthon Smith, of New York. At first tech- 
nical objections were raised, and then a demand was 
made for certain radical amendments before the 
transmission of the Constitution to the states. It 
soon appeared, however, that such a course would 
be inexpedient, and at length, without a word of 
favorable comment, eleven states being present, 
it was unanimously voted that the Constitution 
* Journals of Congress, September 28, 1787. 

277 



278 CONFEDERATION AND CONSTITUTION [1787 

should *'be transmitted to the several legislatures 
in order to be submitted to a Convention of Delegates 
chosen in each state by the people thereof, in con- 
formity to the resolves of the Convention." ^ 

No one could tell what its fate would be. At 
first there were evidences of almost enthusiastic 
approval from the main body of the people.^ Ner- 
vous patriots like Patrick Henry or surly localists 
like Richard Henry Lee needed time to impress on 
the multitude the enormity of the convention's mis- 
deeds. Randolph reported to Madison that Balti- 
more was resounding ''with friendship for the new 
Constitution," that in Alexandria the people were 
enthusiastic, and that every town in Virginia was 
resounding with applause.^ Madison found New 
York City favorable, and heard encouraging reports 
from the eastern states.* New Jersey also ap- 
peared to be zealous. Gouverneur Morris wrote to 
Washington: ''Jersey is so near unanimity in her 
favorable opinion, that we may count with certainty 
on something more than votes, should the state of 
affairs hereafter require the application of pointed 
arguments."^ Thus in the early days there was 
good reason for hope of a speedy victory. 

In truth, the Constitution had many foes to meet. 
There was a little band of irreconcilables who could 

^Journals of Congress, September 28, 1787; Madison, Papers 
(Gilpin's ed.), II., 643-646, 650. 

^Ihid., 646-660. 3 Conway, Edmund Randolph, 95. 

* Elliot, Debates, V., 567; Madison, Letters (ed. of 1865), I., 355- 
•* Elliot, Debates, I., 505. 



DISTKIBUTION OF VOTES 

IIsT KATinCATIOlS" OF 

THE COlSrSTITUTION 



MIDDEE AND SOUTHERN 
STATES 

1787-1788 

Based on Map 
Prepared by O. Gr. Libby 

Federal Majority 
Auti-Federal Majority/ f 



..-•n 



M V 




17S7] STATE CONVENTIONS 2^^ 

see no good in making the central authority ef- 
ficient, who had always opposed the extension of 
national authority, and knew not how else to act. 
There were men of wide influence, like Samuel Adams, 
who had said so much about liberty that they were 
not conversant with the arguments for government. 
There were those who had already begun to cher- 
ish sectional antagonism, fearing the development 
of the west, or disliking the growing power of 
commercial New England. There were the paper- 
money men and the discontented needy, who saw in 
the Constitution a prohibition of bills of credit and 
of laws impairing the obligations of contracts — a 
party which had just been successful in controlling 
the legislatures of seven states. There were those 
who had been indignant at the proposition to close 
the Mississippi and were in no mood to see federal 
power increased and the full right to make treaties 
bestowed on the central government. There was 
the body of the people who for a generation had 
listened to the enchanting oratory of liberty and 
could be easily aroused to dread. There were those 
who, living away from the busy sources of trade, 
saw no need of a central government with wide power 
of taxation and authority to regulate commerce. 
No one of these elements was dangerous alone, but 
together they constituted a party of opposition 
which was aided, of course, by the big body of 
hesitants who at such times pause and shake their 
heads and wonder if it would not be best to let well 



28o CONFEDERATION AND CONSTITUTION [1787 

enough alone. Fortunately, to leave bad enough 
alone was the alternative, and every day was sure 
to bring a few thoughtful reluctants to the support 
of the new Constitution. 

As the days went by, difficulties disclosed them- 
selves. The Federalists, as the supporters of the 
Constitution called themselves, to indicate that they 
were for union and a federal government, and their 
opponents for disunion, were evidently strong in the 
central states.^ But in New York the country dis- 
tricts, under the guidance of CHnton and the state 
office-holders, were rallying to defeat ratification. 
In Massachusetts there was grave uncertainty. Vir- 
ginia had among her counsellors not only Lee, but 
Mason and Patrick Henry, two powerful men, whose 
energy might yet be sufficient to defeat national 
union in the state of Madison and Washington. Rec- 
ognizing the influence of Henry, Washington, on his 
return to Virginia, sent Henry and one or two others 
a copy of the Constitution, and delicately yet forcibly 
suggested the need of adoption. '* From a variety of 
concurring accounts," he said, "it appears to me, 
that the political concerns of this country are in 
a manner suspended by a thread, and that the con- 
vention has been looked up to, by the reflecting 
part of the community, with a solicitude which is 
hardly to be conceived; and, if nothing had been 
agreed on by that body, anarchy would soon have 
ensued, the seeds being deeply sown in every 

» Elliot, Debates, V., 569. 



1787] STATE CONVENTIONS 281 

soil." * Henry answered that he could not bring his 
"mind to accord with the proposed constitution." 

In Pennsylvania there was undoubted enthusi- 
asm for the new system, especially in Philadelphia 
and vicinity, and the Federalists without much dif- 
ficulty passed through the legislature a resolution 
calling a convention. Gouvemeur Morris was part- 
ly right, however, in fearing the "cold and sour 
temper of the back counties " and the opposition of 
those who had "habituated themselves to live on 
the public" under the old system.^ Before the 
convention assembled, a torrent of newspaper ar- 
ticles and pamphlets supporting or defending the 
Constitution issued from the Pennsylvania press. 
The people were seriously in earnest. There were 
papers by "Homespun" and "American Citizen" 
and "Turk " and "Tar and Feathers " and a score of 
others. Turk thought he saw in the Constitution 
a resemblance "to that of our much admired 
Sublime Porte." "Your President general," he 
said, "will greatly resemble in his powers the 
mighty Ahdul Ahmed, our august Sultan — the 
senate will be his divan — your standing army will 
come in the place of our janizaries — your judges un- 
checked by vile juries may with great propriety be 
styled cadis." There was a heavy bit of satire 
signed by" John Humble, Secretary," and purporting 
to be the address of the "low-born" to their fellow- 

* Washington, Writings (Ford's ed.), XL, 165. 
'Elliot, Debates, I., 506. 



282 CONFEDERATION AND CONSTITUTION [1787 

slaves throughout the United States ; in other words, 
to "all the people of the United States, except 
600 or thereabouts," — those who were well-born. 
The low-born multitude professed themselves ready 
to allow the well-born to establish the divine Con- 
stitution which had just been laid before them. 
Another writer, gifted with powers of prophecy, 
depicted the condition of the Union in case the new 
Constitution was rejected. Such items as this, he 
said, would appear in the public press: *'0n the 
30th ult., his Excellency, David Shays, Esq., took 
possession of the government of Massachusetts. 

The execution of , Esq., the late tyrannical 

governor, was to take place the next day." ^ 

On the other side an ''American Citizen" argued 
that the ludicrous papers signed by "Turk" and 
"Gaul" and "Briton" were but cunning tricks to 
make the readers believe that the opposition came 
from foreigners, a "thread-bare piece of political 
jockeyism," when in reality British and foreign 
agents everywhere were "bellowing forth" the 
praises of the proposed Constitution.^ A great deal 
of solemn nonsense was printed and some soimd 
sense. From Pelatiah Webster and a few like him 
who could think with directness came vigorous 
arguments for the Constitution. The ablest single 
presentation of the whole subject was made by 
James Wilson in a speech before a mass-meeting 

* McMaster and Stone, Pa. and Fed. Const,, 121, 159, 173. 

* Ihid,, 164, 



1787] STATE CONVENTIONS 283 

gathered at the Philadelphia state -house. The 
opponents of the Constitution, however, could not 
be silenced by argument, for in mere power to pour 
out words they surpassed the Federal leaders. Wil- 
son was answ^ered by being called ''Jimmy" and 
"James de Caledonia." 

The Pennsylvania state convention met November 
21, 1787. The Federalists were well led by Wilson 
and Thomas McKean ; the Anti-Federalists by Robert 
Whitehill, John SmiHe, and William Findley. The 
debates were able : the Anti-Federalists were some- 
times bitter, but they argued with strength and 
acumen till overborne by superior .numbers. They 
attacked the Constitution because it did not have 
a bill of rights and because it endangered the ex- 
istence of the states, or because, as they said, it 
established "a consolidated government."^ These 
were the chief objections; but the infrequency of 
elections, the danger of an established aristocracy, 
the want of a proper guaranty of jury trial in the 
federal courts,^ and, in general, the exclusive au- 
thority of Congress, were grotinds of criticism and 
complaint. The Federalists asserted that a bill of 
rights was not an essential, and Benjamin Rush 
went so far as to say, '' I consider it as an honor to 
the late convention, that this system has not been 
disgraced with a bill of rights." "Would it not be 
absurd," he said, "to frame a formal declaration 

^ McMaster and Stone, Pa. and Fed. Const., 268. 
nbid., 368. 



284 CONFEDERATION AND CONSTITUTION [1787 

that our natural rights are acquired from our- 
selves?" ^ 

The brunt of the contest fell on the shoulders 
of Wilson. Despite a quaint pedantry and a cer- 
tain didactic manner that must have annoyed his 
opponents and wearied his friends, he spoke con- 
vincingly and with remarkable appreciation of the 
vitals of his subject. He dwelt on the essential 
nature of American institutions, emphasizing the 
fact that governments were now established by the 
people, who were the source of political authority. 
Borrowing his words from Montesquieu, he de- 
scribed the new political system as a "federal re- 
public," a form of government which ''consists in 
assembling distinct societies which are consolidated 
into a new body, capable of being increased -by the 
addition of other members."^ 

Wilson's notion of the nature of the new order 
was well brought out by the term "federal liberty." 
"This, Sir, consists," he said, "in the aggregate of 
the civil liberty which is surrendered by each state 
to the national government ; and the same principles 
that operate in the establishment of a single society, 
with respect to the rights reserved or resigned by 
the individuals that compose it, will justly apply 
in the case of a confederation of distinct and inde- 
pendent States." "This system, Sir, will at least 
make us a nation, and put it in the power of the 

* McMaster and Stone, Pa. and Fed. Const., 295. 

* Ibid., aai. 



1787] STATE CONVENTIONS 285 

Union to act as such. We will be considered as 
such by every nation in the world. We will regain 
the confidence of our own citizens, and command 
the respect of others." ** I consider," he said again, 
"the people of the United States as forming one 
great community, and I consider the people of the 
different States as forming communities again on a 
lesser scale." * He called attention to the fact that 
the work of the convention was new; there were, it 
is true, groups of states known to history, but not 
like the organization now proposed. "The United 
Netherlands," he said, "are, indeed, an assemblage 
of societies ; but this assemblage constitutes no new 
one, and therefore it does not correspond with the 
full definition of a confederate republic." ^ 

After three weeks of discussion the Anti-Federal- 
ists, hoping that delay might aid their cause, of- 
fered a series of fifteen amendments and proposed 
adjournment that the people of the state might 
have time for consideration . The Federalists resisted 
all dilatory tactics and insisted on the immediate 
adoption of the Constitution as it came from the 
hands of its framers. The amendments were not 
unreasonable; the resemblance between them and 
the ten amendments afterward added to the Con- 
stitution is so striking that it has been suggested 
that Madison used the proposition of the Pennsyl- 
vania minority when he drew up the amendments 

* McMaster and Stone, Pa. and Fed. Const., 227, 316, 415. 
' Elliot, Debates, II., 422. 



286 CONFEDERATION AND CONSTITUTION [1787 

in 1789 that were submitted to the states for 
adoption.^ 

The ratification of the Constitution by the Penn- 
sylvania convention took place December 12 by a 
vote of forty-six to twenty-three.^ There was rejoic- 
ing in Philadelphia. On the morrow a procession of 
dignitaries marched to the court-house, where the 
ratification was read to a great gathering. In 
proper Philadelphia fashion a dinner was held at 
Mr. Epple's tavern, at the seasonable hour of three 
in the afternoon, and "the remainder of the day 
was spent in mutual congratulations upon the 
happy prospect of enjoying, once more, order, 
justice and good government in the United States." 
Toasts were drunk to "The People of the United 
States,"^ to the "virtuous minority of Rhode Isl- 
and," and to other bodies equally deserving approval. 

Delaware's convention met at Dover after the 
assembling of the Pennsylvania convention, but it 
reached an earlier conclusion, ratifying the Con- 
stitution by a unanimous vote December 7. New 
Jersey did not long delay. Its convention spent 
but a week in discussion and then without dissent 
voted for ratification (December 18). Thus three 
of the central states accepted the Constitution 
before the beginning of the new year. January 2 
the convention of Georgia passed unanimously a res- 

* McMaster and Stone, Pa. and Fed. Const., 19, 421. 

'Elliot, Debates, I., 319. 

' McMaster and Stone, Pa. and Fed. Const., 429. 



1788] STATE CONVENTIONS 287 

olution for ratification. Among the eastern states, 
Connecticut acted promptly, ratifying (January 9) by 
a vote of one hundred and twenty-eight to forty/ 

In Massachusetts, as in many other states, the 
first prospects for the adoption of the new Constitu- 
tion were bright.^ "The people of Boston," wrote 
Knox, "are in raptures with it as it is, but would 
have liked it still better had it been higher toned." ^ 
The reason for this apparent unanimity was probably 
the fact that the friends of the strong government 
were on the alert and were ready with arguments in 
favor of adoption. Opposition, however, soon de- 
veloped, and ere long it was ax)parent that a hard 
struggle was at hand. Pamphlets and newspaper 
articles denouncing the Constitution as dangerous 
to the liberties of the people were widely circulated. 
Such pamphlets as Lee's Letters of the Federal 
Farmer and even George Mason's letter giving his 
reasons for refusing to sign the Constitution were 
scattered abroad. In a letter to the general court, 
which he is said to have prepared with the critical 
aid of Lee,^ Gerry presented, his objections to the 
Constitution: there was, he contended, no proper 
provision for representation; no suitable definition 
of the legislative powers of the new government; 
serious danger of an undue influence by the execu- 

"^^ Journals of Congress (ed. of 1823), IV., App., 46, 48, 49, 
^ Harding, Fed. Const, in Mass., 16. 
' Sparks, Corresp. of the Rev., IV., 178. 

* Bancroft, Hist, of the Const., II., 230. For the letter, see 
Austin, Elbridge Gerry, II., 42-45. 



288 CONFEDERATION AND CONSTITUTION [1788 

tive and of oppression by the judiciary ; no restraint 
on the powers of the president, with the advice of 
two-thirds of a quorum of the Senate, to make 
treaties. Like so many others, he found fault with 
the failure to append a bill of rights as a security 
for individual liberty. He strongly advised amend- 
ments before ratification. "The constitution pro- 
posed," he said, "has few, if any federal features, 
but is rather a system of national government." 

Such were some of the more sober criticisms of 
the Constitution. Other writers objected to the 
annihilation of the Confederation, the surrender of 
annual elections, the power and structure of the 
Senate, the great and exclusive power of levying 
duties on imports and exports as well as collect- 
ing internal taxes, the power over the militia, the 
right of Congress to raise and support a standing 
army, the establishment of a supreme court superior 
to the courts of the states. " In short," said one of 
the least declamatory of the opponents, "... you 
must determine that the Constitution of your Com- 
monwealth, which is instructive, beautiful and con- 
sistent in practice, ... a Constitution which is es- 
pecially calculated for your territory, and is made 
conformable to your genius, your habits, the mode 
of holding your estates, and your particular interests, 
shall be reduced in its powers to those of a City 
Corporation." * 

* From Amer. Herald, October 29, 1787, quoted in Harding, 

Fed. Const, in Mass., 25. 



1788] STATE CONVENTIONS 289 

Arguments such as these, bearing as they did 
some show of reason and candor, were not the most 
difficult to meet and refute. Just recovering from 
the perils and anxieties of Shays 's rebellion, Mas- 
sachusetts was filled with uneasy spirits who were 
not prepared to consider any constitution on its 
merits. They were ready to break out into decla- 
mation, to appeal to class prejudices, and make 
much noise by the use of popular phrases whose 
cogency outweighed much calm discussion. Those 
who had followed the fortunes of Shays and Luke 
Day were wroth, indeed, at the sight of an instru- 
ment which forbade the states to issue paper money 
or impair the obligations of contracts, and which 
proposed to establish a powerful government that 
could collect taxes, establish federal courts, and 
put down insurrections. The Anti-Federalists came 
largely from the interior districts, from regions 
without capital or commerce, where paper money 
and tender - laws had found their chief support.^ 
The old distrust of the upper classes and the ''well- 
bom," the hostility among the countrymen to the 
dwellers in Boston, the dislike of lawyers as in- 
struments of injustice, all appear in the opposition 
to the Constitution. The advocates of adoption 
were declared by a vehement opponent to "consist 
generally, of the noble order of C[incinnatu]s, hold- 
ers of public securities, . . . B[an]k[er]s, and 

* Libby, Distribution of Vote on Federal Const., 1^8/ -^1^88^ 
12. 57- 



290 CONFEDERATION AND CONSTITUTION [1787 

L[aw]y[er]s: these with their train of dependents 
form the Aristocratick combination — the L[aw]y[e]r 
in particular, keep up an incessant declamation for 
its adoption, like greedy gudgeons they long to sati- 
ate their voracious stomacks with the golden bait."^ 

"It is a singular circumstance," wrote Knox, 
"that in Massachusetts, the property, the ability, 
and the virtue of the State, are almost solely in 
favor of the Constitution." ^ The clergymen, whose 
political influence was of real moment, the mer- 
chants and business men, the men of substance 
who had been startled by the recent popular ex- 
travagances, the sober-minded who could reason 
thoughtfully and were not easily driven by decla- 
mation, strongly favored the proposed government. 
The Anti-Federalists were challenged by a Boston 
newspaper to point out a man of independent senti- 
ments, either merchant, trader, farmer, mechanic, 
lawyer, physician, or divine, who was not fully per- 
suaded that on the adoption of the Constitution de- 
pended the peace, honor, and happiness of the land.^ 

The struggle in Massachusetts has for the student 
of history a profound interest. We see clearly the 
difficulty of establishing popular government, even 
■under the best of circumstances — in a community 
where men were fairly well educated and had had 
practical experience in politics. The opposition to 

* "A Federalist," in the Boston Gazette, November 26, 1787. 
^Debates and Proceedings, 410; King, Life and Corresp. of 
King, I., 317. ^ Boston Gazette, December 3, 1787. 



1788] STATE CONVENTIONS 291 

the Constitution shows how hard it was to found 
a strong government at the end of a Revolution 
which had shaken the foundations of society. The 
conditions then disclosing themselves enable us to 
understand the political situation of the next gen- 
eration, for party organizations were forming, and 
political prejudices and opinions were hardening 
in those days when the government of the new 
nation, peace, and domest'c tranquillity were at 
stake. In watching the contest over the Constitu- 
tion, we see the dangerous element of extreme de- 
mocracy, vehement, suspicious, and talkative, which 
by its very strength confirmed the unbending con- 
servatism of the substantial classes, the social and 
business leaders of the state, a conservatism which 
lasted for a generation and more. The substantial 
elements of society were gathering together prepar- 
ing to support strong and efficient government ; they 
were to fight off the development of democratic 
tendencies for many years to come ; they were, in a 
reactionary spirit, to oppose the liberal and en- 
lightened notions of the reasonable, patriotic, and 
progressive democracy that was soon to find its own 
organization, its own distinct purpose. 

When the convention assembled, it was plain 
that the majority was opposed to ratification.^ The 
Federalists found efficient leaders in King, Gorham, 
Strong, Fisher Ames, Parsons, and Bowdoin. The 
task was to meet prejudice and assertion with 
^ Knox to Washington, in Debates and Proceedings, 410, 



292 CONFEDERATION AND CONSTITUTION [1788 

patient argument, and to win over the remnant 
of silent delegates whose ears were still open to 
counsel.* The opponents of ratification demanded 
amendments in the nature of a bill of rights ; they 
objected to the exclusive powers of Congress and 
to its wide power of taxation in particular; they 
found fault with the representation of slaves and 
with the right to introduce slaves for twenty years. ^ 
The problems of the Federal leaders were well 
described by King in a letter to Madison: "Our 
Convention proceeds slowly ; an apprehension that 
the liberties of the people are in danger, and a 
distrust of men of property or education have a 
more powerful effect upon the minds of our op- 
ponents than any specific objections against the 
Constitution." ^ 

There were two men in Massachusetts whose in- 
fluence was much needed by the Federalists. With- 
out them success was next to impossible. One was 
John Hancock. Though elected a delegate and 
chosen chairman of the convention, he did not at 
first attend the sessions, being detained at home by 
an attack of gout which some of his friends thought 
would disappear as soon as a majority was shown 
on either side of the difficult question.* Plans were 

* Belknap Papers, pt. ii., in Mass. Hist. Soc, Collections, 
5th series, III., 6. 

^Debates and Proceedings, 208, 209; Elliot, Debates, II., 107. 
^ King, Life and Corresp. of King, I., 314. 

* King, in Thatcher Papers, Historical Magazine, 2d series, 
VI., 300, 



1788] STATE CONVENTIONS 293 

laid to secure his aid. He was given to understand 
that the friends of Bowdoin would support him for 
governor at the next election. He was also told 
that his chances for election to the vice-presidency 
were good, and that in case Virginia did not ratify 
the Constitution he would naturally be chosen as 
the first president of the new republic* 

The other man whose influence was needed was 
the veteran poHtician Sam x\dams. He was prob- 
ably sincerely in doubt, for he did not lack decision 
when he could read the stars aright. When the 
Constitution first came into his hands he did not 
like it. "I stumble at the threshold," he wrote 
Lee in December. " I meet with a national govern- 
ment, instead of a federal union of sovereign states." ^ 
The Federalists feared his opposition, for he had 
already expressed his dissatisfaction ; ^ but for some 
reason, perhaps common political shrewdness, he 
did not openly enter the lists of combatants, and 
so when the friends of the Constitution began gath- 
ering their strength, and when the Boston trades- 
men announced their desire for ratification, he was 
ready to acquiesce without humiliation. 

A letter from Washington, which probably had a 
decided effect on the Massachusetts convention, was 
now published in a Boston paper. ''And clear I 

^ Harding, Fed. Const, in Mass., 85-87, where evidence is 
summarized; King, Life and Corresp. of King, I., 317, 319, 360; 
The Writings of Laco, No. vii., 25, 28. 

* Lee, Richard Henry Lee, II., 130. 

* King, Life and Corresp. of King, I., 313. 



294 CONFEDERATION AND CONSTITUTION [1788 

am," he said, *'if another Federal Convention is 
attempted, that the sentiments of the members will 
be more discordant. ... I am fully persuaded . . . 
that it [the Constitution] or disunion is before us 
to chuse from. If the first is our election, a con- 
stitutional door is opened for amendments, and may- 
be adopted in a peaceable manner, without timiult 
or disorder." ^ To those, then, who demanded a 
new convention or the adoption of amendments 
before ratification, the wiser plan was offered of 
adopting the Constitution and then asking for de- 
sired amendments. 

After the convention had been in session about 
three weeks, Hancock took his place, and under the 
skilful coaching of the Federal leaders prepared to 
play his part. He offered a conciliatory proposi- 
tion, proposing immediate ratification of the Con- 
stitution and the recommendation of amendments 
which would quiet the fear of the good people of 
Massachusetts. Adams looked with favor on this 
method of avoiding the difficulty, and moved the 
consideration^ of Hancock's proposals. The vic- 
tory of the Federalists was won. Even Nathaniel 
Barrell, who at the time of his election was "a 
flaming Antifederalite," announced his conversion.^ 

^ Green's Virginia Herald, Fredericksburg, Va.; Pennsylvania 
Packet, January it, 1788; Massachusetts Centinel, January 23, 
1788. 

2 Elliot, Debates, XL, 123. 

' Thatcher Papers, in Historical Magazine, 2d series, VI., 271 ; 
Elliot, Debates, II., 159. 



1788] STATE CONVENTIONS 295 

Several days of debate ensued, but when the final 
vote was taken, one hundred and eighty-seven voted 
for ratification and one hundred and sixty - eight 
against it.^ 

The amendments^ which were asked for by the 
convention were intended to limit the powers of 
Congress and to assure the individual certain rights 
and privileges. The most important was the first, 
declaring that the Constitution should explicitly 
state that all powers not expressly delegated by 
the Constitution were reserved to the several states. 
The method of ratification had its influence in other 
states. Had the delegates been reduced to the al- 
ternative of rejecting the Constitution or accepting 
it without reasonable hope of amendment, their 
fears in some cases would have made rejection cer- 
tain. But the conciliatory proposition met with 
favor. Of the seven states acting on the Constitu- 
tion after Massachusetts, only one failed to accom- 
pany ratification with amendments recommended 
for subsequent adoption. 

By February 7, six states had adopted the Con- 
stitution, but Federal success was not yet assured. 
Even Virginia and New York, two important states, 
might still refuse to ratify, and in others there 
was diligent opposition. In Maryland there was a 
sharp struggle. The Anti-Federalists, led by Martin 
and Samuel Chase, were vehement in their opposition, 
declaring the new Constitution, if adopted without 
» Elliot, Debates, II., 181. ^ Ibid., 177. 



296 CONFEDERATION AND CONSTITUTION [1788 

amendments, deadly to liberty. But the Federalists, 
controlling the convention and refusing to be en- 
ticed into fruitless discussion, remained at length 
** inflexibly silent" ^ when their opponents demanded 
answers to their questions. The convention ratified 
the Constitution by a vote of sixty-three to eleven 
(April 26).' 

When the Constitution came before the legislature 
of South Carolina in January, 1788, it was vigorous- 
ly attacked and ably defended. Charles Pinckney 
took occasion to correct those who complained at the 
radical action of the makers of the Constitution who, 
being sent to add commercial and revenue powers to 
the authorities of the old Congress, had cast aside 
the Confederation and proposed a new system. 
Nothing can be more true, he said, than that the 
promoters of the Federal Convention had for their 
object the establishment of " a firm national govern- 
ment." The legislature finally voted to call a con- 
vention, and when the delegates came together 
they adopted the Constitution after a short discus- 
sion by a vote of over two to one.^ 

Eight states had now ratified the Constitution, 
and a determined effort was made to secure the 
ninth, so that it might at least be possible to or- 
ganize the new government. New Hampshire gave 
both parties ground for hope. When the state 



* Elliot, Debates, 11, , 549. 

' Docum. Hist, of the Const., II., 105. 

' Elliot, Debates, IV., 255, 340. 



1788] STATE CONVENTIONS 297 

convention met in February, 1788, the Federalists 
found that if a vote were taken there would be a 
small majority for rejecting the Constitution, and it 
was therefore proposed to adjourn and meet again 
in Jtme. The character of the convention was not 
the same when it reassembled. After four days 
of discussion the Constitution was ratified by a vote 
of fifty-seven to forty-seven.* The ninth state was 
secured at last. Before the result in New Hamp- 
shire was known in the south, Virginia, as we shall 
see, had met and passed the crisis.^ 

* Elliot, Debates, IV., 573; Provincial and State Papers of Now ^ 
Hampshire, X., 15, 19, 

^Curtis, Hist, of Const., II., 578, n. 



CHAPTER XVIII 

FOR BETTER OR FOR WORSE 
(1788) 

IN Virginia the contest was desperate. Only good 
fortune and hard work could bring success to 
the Federalists, for their opponents were ably led 
and were aided by local conditions. The source of 
the determined opposition is hard to trace. Oliver 
Ellsworth declared that it ** wholly originated in two 
principles ; the madness of Mason, and the enemity 
of the Lee faction to General Washington. Had 
the General not attended the convention nor given 
his sentiments respecting the constitution, the Lee 
party would imdoubtedly have supported it, and 
Col. Mason would have vented his rage to his own 
negroes and to the winds. " * In truth, however, there 
were other causes than personal pique and mean- 
minded jealousy: the spirit of local pride and the 
fear for personal liberty were easily aroused in 
Virginia; the western sections were already excited 
over the possibility of the surrender of American 
rights to Spain, while others were beginning to look 

* "A Landholder" (Ellsworth), in Ford, Essays on the Con- 
stitution, 177 

298 



1788] ADOPTION . 299 

with suspicion on the commercial power of the 
New England states. Here, as elsewhere, the more 
thickly populated districts were favorable to the 
Constitution, and sectional conditions had their in- 
fluence. In the eastern section four-fifths of the 
delegates that were chosen to the convention favored 
adoption; in the middle district, peopled by small 
farmers, three-fourths were opposed to adoption. 
The region somewhat farther west, also peopled by 
small farmers, who were chiefly Scotch - Irish and 
Germans from Pennsylvania, was almost a unit for 
adoption. On the other hand, nine-tenths of the 
delegates from the Kentucky region were Anti- 
Federalists.^ 

The leaders of both parties were able and un- 
tiring. Though Lee was not elected a member of 
the convention, he worked sedulously against adop- 
tion. Henry, at the head of the Anti-Federal dele- 
gates, exclaimed and expostulated in a turbulent 
stream of rhetoric. Mason, bitterly complaining 
over the establishment of a national government 
and over Congressional authority to regulate com- 
merce, opposed the Constitution to the end with 
characteristic energy. Grayson also was in opposi- 
tion, and Monroe, neglecting to follow the guidance 
of the wiser Madison, gave the Anti-Federalists such 
aid as he could. 

Strong as these men were, they were met by their 
equals. Washington was not a member of the con- 

* Libby, Distribution of Vote on Federal Const., 34 et seq. 



300 CONFEDERATION AND CONSTITUTION [1788 

vention, but his unwavering support of the Consti- 
tution and his broad-minded utterances concern- 
ing the absolute necessity of union were of incal- 
culable value. Randolph had by this time given 
up his uncertainty, and he spoke eloquently for 
adoption. John Marshall, a young man of thirty- 
two, with a clear head and an easy command of 
sound logic, was chosen to the convention and 
argued ably for the Constitution. Madison was 
the active leader of the Federalist forces, and he 
led them well; his temper was never ruffled nor 
his reason clouded. A careful study of Henry's 
brilliant oratory leaves one in wonder that day after 
day his fervid exclamations were answered with 
imperturbable calmness and placid good sense. 
Madison had none of the graces of orator}^ ; he was 
small and unimpressive ; his manner seemed at times 
to betoken irresolution ; when he rose to speak, his 
voice was low, and he stood hat in hand as if he had 
just come in to give a passing word of counsel.* 
But he knew what he was talking about, he was pre- 
pared to speak, and he did not envelop his thought 
in ornamental rhetorical wrappings. 

Henry began the contest in the convention by 
dramatically declaring that the conduct of the dele- 
gates to Philadelphia should be investigated. " Even 
from that illustrious man who saved us by his valor, 
I would have a reason for his conduct." "What 

* Fisher Ames, Works, I., 35; Elliot, Debates, III., 86, 305, 
395; Hunt, Madison, 151. 



DISTRIBUTION OF VOTES 

IN RATIFICATION OF 

THE CONSTITUTION 



NEW ENGLAND 
1787-1790 

Based on 3IaiJ 
Prepared by O.G. Libby 



-=^ Federal Majority 
■^^m Auti-Federal Majority 
IH Eveuly Divided 




BORMAY t CO., N.r. 



1788] ADOPTION 301 

right," he exclaimed, ''had they to say, We, the 
people? . . . Who authorized them to speak the 
language of, We, the people, instead of, We, the 
states V He declared that the Constitution es- 
tablished a consolidated government, and that the 
sovereignty of the states would be relinquished. 
Mason, too, asserted that " whether the Constitution 
be good or bad," the power to tax clearly showed 
that the new government was a national govern- 
ment: ''The assumption of this power of laying 
direct taxes does, of itself, entirely change the con- 
federation of the states into one consolidated 
government." ^ 

To such declarations it was hard to give an ex- 
plicit answer. Madison could only say that the new 
system was neither a thoroughly consolidated govern- 
ment nor a mere confederation : " It stands by itself. 
In some respects it is a government of a federal 
nature; in others, it is of a consolidated nature." 
Henry ridiculed this strange new government, "so 
new, it wants a name. I wish its other novelties 
were as harmless as this."^ But his ridicule was 
misplaced; though we have lived over a hundred 
years under the Constitution, we should have dif- 
ficulty in describing its system much more accurately 
than Madison then described it. It did not provide 
for a centralized state nor did it provide for a mere 
league of states. In the essays that Madison was 

* Elliot, Debates, III., 33, 39, 44; see also 521, 533. 

* Ibid., 94, 160. 

VOL. X. 21 



302 CONFEDERATION AND CONSTITUTION [1788 

then writing for the press, seeking to allay the fears 
of the people for the security of the states, he made 
a similar assertion: ''The proposed Constitution, 
therefore, even when tested by the rules laid down 
by its antagonists, is in strictness, neither a National 
nor a Federal Constitution; but a composition of 
both." ^ Another Federal member of the conven- 
tion, Mr. Corbin, aptly called the new government 
"a representative federal republic, as contradis- 
tinguished from a confederacy." ^ 

To obtain amendments as a condition of ratifica- 
tion or to secure the meeting of a second federal 
convention seems to have been Henry's purpose. 
But, indeed, there was little in the Constitution 
that suited him and his eager followers. In com- 
parison with such a consolidated government,, small 
confederacies, he declared, were little evils. The 
dangers of the new system were many and evident : 
the president would become a tyrant; America 
would be enslaved ; there w^as no proper security for 
a safe basis of representation; Congress, by its 
power of taxation, would clutch the purse with one 
hand and wave the sword with the other; customs 
ofticers, for whom the American people cherished a 
hereditary hatred, would burden the people with 
their exactions. *' I never will give up that darling 
word requisitions," exclaimed Henry, with dramatic 
pathos ; ** my country may give it up ; a majority may 

■ * The Federalist, No. xxxix. (Scott's ed.), 215. 
2 Elliot, Debates, III., 107. 



1788] ADOPTION 303 

wrest it from me, but I will never give it up till 
my grave." ^ 

The clause giving Congress power to lay taxes to 
provide for the common defence and general wel- 
fare of the United States was termed the " sweeping 
clause";^ it would in the end bestow all authority 
on the central government. There was great and 
serious danger lurking in the clause giving Congress 
exclusive power of legislation over a district ten 
miles square. "This ten miles square," said Mr. 
Mason, ''may set at defiance the laws of the sur- 
rounding states, and may, like the custom of the 
superstitious days of our ancestors, become the 
sanctuary of the blackest crimes."^ The treaty- 
making power was fraught with grave perils, and the 
Anti-Federalists, desiring to hold the vote of the 
Kentucky members, insisted that the closure of the 
Mississippi could more easily be brought about if 
the Constitution were adopt ed."* 

These objections were met by the Federalists with 
good arguments. The ' ' sweeping clause ' ' was shown 
to contain no new powers, but to indicate only the 
purposes of taxation — to provide for the common 
defence and general welfare. Without exclusive 
legislation within ten miles square. Congress might 
be subjected to insult. As for the Mississippi, no 
reasonable treaty securing America rights of naviga- 

^ Elliot, Debates, III., 59, 60, 147, 148, 161. 

2 E.g., ibid., 441-443. 

^ Ibid., 431. *Jbid., 340, 501. 



304 CONFEDERATION AND CONSTITUTION [1788 

tion could be obtained under a weak and ineffective 
government/ The convention was urged to assure 
the success of the Constitution by ratifying as the 
ninth state; for, as we have said, New Hampshire's 
action was not yet known in Virginia. 

The opponents of the Constitution objected to 
the clause allowing the importation of slaves for 
twenty years. "As much as I value a union of all 
the states," said Mason, ''I would not admit the 
Southern States into the Union unless they agree to 
the discontinuance of this disgraceful trade." Yet 
he complained that Congress might, by taxation, 
bring about emancipation. Tyler pronounced the 
trade impolitic, iniquitous, and disgraceful. Henry, 
confessing that slavery was detested and declaring 
that it would rejoice his very soul if every one of 
his fellow-beings were set free, held up the fear 
that the northern states would free the slaves and 
declare "that every black man must fight. "^ 

After a three weeks* session the convention was 
ready for a final vote. The Anti-Federalists de- 
bated to the end. The Federalists were willing that 
amendments to be adopted after ratification should 
be recommended ; but Henry still asserted that there 
was no trouble about getting them adopted be- 
fore ratification, and that subsequent amendments 
would but make matters worse. "The proposition 
of subsequent amendments is only to lull our ap- 

» Elliot, Debates, III., 331, 433, 443. 
^Ibid., 452, 454, 590. 



1788] ADOPTION 305 

prehensions," he exclaimed. "Will gentlemen tell 
me that they are in earnest about these amend- 
ments? I am convinced they mean nothing seri- 
ous."* When the vote came, eighty -nine delegates 
voted for ratification and seventy-nine against rat- 
ification (June 25, 1788).^ The resolution was ac- 
companied by a solemn statement that the powers 
granted under the Constitution, being derived from 
the people of the United States, might be resumed 
by them whenever the powers were perverted to 
their injury or oppression. A list of twenty articles 
constituting a bill of rights was added, beginning, of 
course, with the essential assertion "that there are 
certain natural rights, of which men, when they 
form a social compact, cannot deprive or divest 
their posterity," ^ Twenty other amendments were 
presented, and the convention in the name and behalf 
of the people of Virginia enjoined upon their repre- 
sentatives in Congress the duty of working for the 
adoption of all the amendments to the Constitution. 
Difficult as was the task of the Federalists in 
Virginia and Massachusetts, still greater trouble 
faced them in New York, where the Anti-Federalists 
were led by George Clinton and formed a strong 
party of opposition. The city of New York and 
the immediate neighborhood were enthusiastically 
in favor of adoption; most of Long Island and a 
portion of the east bank of the Hudson were evenly 

» Elliot, Debates, III., 649, 650. 

' Ibid., 654. ' Ibid., I., 327, III., 657. 



3o6 CONFEDERATION AND CONSTITUTION [178^ 

divided; but the whole interior region was in 
opposition.^ More than half the goods consiimed 
in Connecticut, New Jersey, Vermont, and western 
Massachusetts were bought within the limits of 
New York and paid an import duty into its coffers. 
This fact caused many New-Yorkers to hesitate to 
surrender to the general government the power to 
levy certain duties, and it called forth obstinate and 
selfish opposition to the new Constitution.^ The 
great landholders of the state, who were naturally 
jealous and conservative, were supported by the 
paper-money men and by the small band of office- 
holders, who feared that the state imposts would be 
lost^ and their salaries reduced. 

Some of these men were opposed not so much to 
the Constitution as to the federal impost. "* The Fed- 
eralists of the city and its vicinity were, however, very 
much in earnest and were not willing even to contem- 
plate the organization of the new republic without 
New York ; if Clinton and his followers were intent 
on holding aloof from the Union, what was to pre- 
vent the southern portion of the state from establish- 
ing an organization and ratifying the Constitution ? ^ 

Under the circumstances, to win the vote of New 

* Libby, Distribution of Vote on Federal Const., i8. 

' McRee, Life and Corresp. of Iredell, II., 227, 228. 

3 Libby, Distribution of Vote on Federal Const., 20, 26, 59. 

*" A Landholder" (Ellsworth), in Ford, Essays on the Con- 
stitution, 176. 

'Pa. Gazette, June 11, 1788, quoted in Lihhy, Distribution 
of Vote on Federal Const., 19; New Haven Gazette, July 24, 
1788, quoted, ibid.; Jay, Corresp. and Public Papers, III., 335. 



1788] ADOPTION 307 

York was difficult in the extreme. Hamilton pro- 
posed to Jay and Madison the publication of a se- 
ries of papers in defence of the Constitution. They 
bore the title of *'The Federalist," and appeared 
in the Independent Journal, the Daily Advertiser, 
the Packet, and other New York papers, over the 
name of "Publius." There is still some dispute as 
to the exact part taken by each member of this 
competent triimivirate.^ Jay undoubtedly wrote 
but five of the essays ; Madison seems to have been 
the author of twenty-nine, and Hamilton of fifty- 
one. Jay discussed the provisions of the Consti- 
tution affecting foreign affairs and the existing 
relations with foreign povv^ers; ^ladison considered 
the foundations of government, the nature of con- 
federacies and the examples of the past, the re- 
publican character of the new Constitution, the 
principle of separation of governmental powers, and 
representation under the new system. Hamilton 
commented on the need of union, on the danger of 
separation or the establishment of separate con- 
federacies, on the glaring defects of the old Con- 
federation, on the need of a government that could 
address itself immediately to the hopes and fears 
of individuals, on the frmctions of the executive 
and judicial departments, and oil the necessity for 
the regulation of commerce. 

^ Bourne and Ford, in Amer. Hist. Review, II., 443, 675; see 
also introduction to editions of Dawson, Hamilton, Bourne, Ford, 
and Lodge. 



3o8 CONFEDERATION AND CONSTITUTION [1788 

All of these essays are written in a style simple, 
clear, and straightforward. Abstruse as are the 
topics discussed, there is no ambiguity, no faltering, 
no juggling after the manner of demagogues. Each 
proposition is presented by men who expected to 
be heard and wished to convince the listener. 
While every word spoken bears directly on the great 
issue at hand, there is no sign of littleness, no per- 
sonal allusions, no narrowness of view; general 
principles are laid down with daring and assurance 
by men who were still young in years but had read 
widely and had studied human nature. "The 
Federalist" did not make much stir at the time, 
though some men were impressed by its power. 
And yet in the heat of this crisis these men were 
turning ofi with astonishing rapidity one of the 
greatest works ever written in the realm of politi- 
cal science. Perhaps America has as yet made no 
more signal contribution to learning or to litera- 
ture. 

When the New York convention assembled at 
Poughkeepsie in June, two-thirds of the delegates 
were hostile to the Constitution ; and the task that 
confronted Hamilton, Jay, and Robert R. Living- 
ston was a serious one. Lansing, Clinton, and 
Melancthon Smith led in the assault and were sup- 
ported by their feebler followers. There was no 
disposition to defend the existing Confederation,* 
or to deny that the country needed peace and 
»glliot, Debates, II., 223, 358. 



1788] ADOPTION 309 

prosperity, but the Anti-Federalists were unwilling 
to accept the Constitution as a remedy. 

For a time the chief object of attack was the 
system of representation, which was declared to be 
inadequate. Congress, it was said, would be cor- 
rupt and vicious; positions would be secured for 
life; the senators would become especially danger- 
ous. "What will be their situation in a federal 
town?" exclaimed one delegate. "Nothing so un- 
clean as state laws to enter there, surrounded, as 
they will be, by an impenetrable wall of adamant 
and gold, the wealth of the whole country flowing 
into it." Some one wanted to know what "wall" 
the speaker meant; "on which he turned, and 
replied, *A wall of gold — of adamant, which will 
flow in from all parts of the continent.'" In spite 
of the amusement of the audience at his liquid 
wall of adamant, he went on to lament the luxuri- 
ous life of congressmen within the sacred precincts 
of the federal city.^ In general, of course, the 
arguments of the opposition were based on fear 
and suspicion, but there was not the narrow class 
jealousy that was manifested in Massachusetts, 
nor the flood of exuberant oratory that was poured 
out in Virginia. The union of the purse and sword, 
the extensive power of taxation granted to the 
national government, the weakness of the states, 
were all dwelt on at length as reasons for the re- 
jection of the Constitution. 

» Elliot, Debates, II., 287. 



310 CONFEDERATION AND CONSTITUTION [1788 

After the convention had been a week in ses- 
sion, news was brought that New Hampshire had 
ratified, and the establishment of the new Con- 
stitution was assured. On July 3 came the an- 
noimcement that Virginia also had thrown in her 
lot with the majority. If New York rejected the 
Constitution, she was separated from the other 
states, and stood with Rhode Island and North 
Carolina. Such a fact must have acted as a pow- 
erful argument on the minds of the Anti- Feder- 
alists. 

By this time different proposals, short of ab- 
solute rejection, were considered: to draw up and 
present amendments for adoption before ratifica- 
tion ; to ratify and at the same time propose amend- 
ments with the declaration that, if the amendments 
should not be adopted within a certain time, the 
state would withdraw from the Union; and, lastly, 
to ratify and recommend amendments with the 
hope of their adoption. Hamilton, fearing that 
without material concession his opponents would 
win the day, wrote to Madison to inquire his opinion 
as to the propriety of a conditional ratification with 
"the reservation of a right to recede" if proper 
amendments were not made. ''My opinion is," re- 
plied Madison, ''that a reservation of a right to 
withdraw, if amendments be not decided on imder 
the form of the Constitution within a certain time, 
is a conditional ratification; that it does not make 
New -York a meniber of the new Union, and 



lySS] ADOPTION 311 

consequently that she could not be received on 
that plan."* 

Though Hamilton is said to have declared that the 
convention should never rise till the Constitution 
was adopted, to the end there seemed little hope 
of success.^ He debated imtiringly and with re- 
markable power and eloquence. At length the op- 
position began to give way, and Melancthon Smith 
himself, giving up his attempt to force conditional 
ratification, voted with the Federalists in favor of 
accepting the Constitution, ''in full confidence" 
that certain amendments would be adopted. The 
final vote stood thirty for ratification and twenty- 
seven against it.^ Before the vote was taken a 
resolution was imanimously passed favoring the 
preparation of a circular letter to the states recom- 
mending a second constitutional convention. The 
resolution, declared by Madison to be of ''most 
pestilent tendency," ^ was in reality a cheap price to 
pay for unconditional ratification. Counting New 
York, eleven states had adopted the Constitution, 
and, in spite of the demands of the politicians, the 
people were not ready to enter once again upon the 
troublesome task that was but just finished. 

The circular letter, however, did for a time have 
some effect. In Virginia it fell on good ground,® 

* Hamilton, Works (Hamilton's ed.), I., 464, 465. 

2 J. C. Hamilton, Hist, of the Rep., III., 523. 

3 Elliot, Debates, II., 412, 413. 

* Madison, Letters, I., 410. 

' Henry, Patrick Henry, II., 409 et seq. 



312 CONFEDERATION AND CONSTITUTION [1788 

for the assembly, led by Henry, who was uneasy 
under defeat, was ready to do his bidding. A reply 
to the New York letter was drawn up, a circular to 
the states, and a memorial to Congress ; the objections 
to the Constitution were said not to be foimded on 
speculative theory, but deduced from the principles 
established by the melancholy example of other 
nations and of different ages. In Pennsylvania the 
Anti-Federalists, among whom Albert Gallatin now 
took a leading part, demanded a speedy revision by 
a general convention, but recommended the people 
of the state to acquiesce in the organization of the 
government.* 

Two states lingered behind the others — Rhode 
Island, which was in no condition to do anything 
wise, and North Carolina, which lacked unity, was 
imder the influence of frontier sentiment, and had 
not felt the pressure experienced by the commercial 
sections of the Union. The letter from New York 
probably affected the course of North Carolina, for 
the convention of that state came to no decision, the 
opponents of the Constitution refusing either to 
ratify or reject, and awaiting developments. 

Rhode Island was still intent on showing her 
superiority over her neighbors ; when the Constitu- 
tion was received by the legislature, it voted to have 
the document printed and distributed, that the peo- 
ple might have "an opportunity of forming their 

* Elliot, Debates, II., 544; McMaster and Stone, Pa. and Fed. 
Const., 560. 



1788] ADOPTION 313 

sentiments " on the matter/ Some time afterward 
the legislature solemnly enacted that on the fourth 
Monday in March "all the freemen and freehold- 
ers" should convene in their several towns and 
there deliberate upon the Constitution. ^ The town- 
meetings were farcical: the Federalists as a rule 
refused to vote, and the result was that 237 were 
counted as voting for adoption and 2,708 in the 
negative.^ The Federalists were, however, not idle. 
They formed a strong minority, and their ability 
and strength were destined to win before long and 
to wrest the state from the hands of the ignor- 
ant, suspicious, and bigoted men who had already 
brought it into disrepute. Even in Rhode Island 
the Federalists did not entirely despair. There was 
still hope that the ''inconsiderate people" would not 
fill " up the measure of iniquity " ; the belief prevailed 
that the scales were ** ready to drop from the eyes, 
and the infatuation to be removed from the heart," 
of the state.'* 

We have now traced the establishment of the 
supreme law of the new republic ; we have seen how 
the American people found adequate political or- 
ganization, and closed, for a time at least, the great 
political drama that began with the Stamp Act, 
when England and America entered on the dispute 

• * Bates, R. I. and the Union, 162; Staples, R. I. in the Con- 
tinental Congress, 584. 

^ Ibid., 586. ^Ihid., 589, 606. 

* Washington, Writings (Ford's ed.), XI., 287. 



314 CONFEDERATION AND CONSTITUTION [1788 

as to the distribution of power and the principles 
of government. There is no doubt that when the 
Constitution was adopted its framers considered it 
an experiment; but they hoped that it would last; 
they planned for the far future. There is absolute- 
ly no evidence to support the notion that they be- 
lieved they were simply entering into a new order of 
things in which the states would have the right, as 
before, to refuse obedience and to disregard obliga- 
tions, or from which they could at any time quietly 
retire when they believed the Union did not suit 
their purposes. Everything points to the fact that 
they intended to form a real government and a 
permanent imion; all the solemn debates in the 
state conventions, all the heated arguments of the 
Anti-Federalists, all the outcry against the estab- 
lishment of a consolidated government, are absurd, 
meaningless, if the people felt that they had the 
legal right to go on just as before and leave the 
Union when they saw fit. At times the Constitution 
was spoken of as a compact, but this never meant 
mere agreement equivalent to a treaty between 
sovereign states. Compact was the most solemn 
and serious word in the political vocabulary of the 
men of that generation ; society itself was founded on 
compact, and government rested on the same foun- 
dation.^ The words with which Massachusetts es- 
tablished her own constitution were almost exactly 

^ See for the whole subject, McLaughlin, " Social Compact and 
Constitutional Construction," in Amer. Hist. Review, V., 467-490. 



I788J ADOPTION 315 

the same as those with which she established the 
Constitution of the United States — which, in truth, 
was also her own: "Acknowledging, with grateful 
hearts, the goodness of the Supreme Ruler of the 
universe in affording the people of the United States, 
in the course of his providence, an opportimity, 
deliberately and peaceably, without fraud or sur- 
prise, of entering into an explicit and solemn com- 
pact with each other, by assenting to and ratifying 
a new Constitution." ^ 

If one really wishes to know the sentiments of 
the time, let him read the words of Ellsworth in 
the Connecticut convention, for no one better than 
he knew what was done and what the work of the 
m.oment meant. '' How contrary, then, to repub- 
lican principles, how humiliating, is our present 
situation! A single state can rise up, and put a 
veto upon the most important public measures. 
We have seen this actually take place. A single 
state has controlled the general voice of the Union; 
a minority, a very small minority, has governed us. 
So far is this from being consistent with republican 
principles, that it is, in effect, the worst species of 
monarchy. Hence we see how necessary for the 
Union is a coercive principle. No man pretends the 
contrary ; we all see and feel this necessity. The only 
question is, Shall it be a coercion of law, or a coercion 
of arms ? . . . I am for coercion by law — that coer- 
cion which acts only upon delinquent individuals." ^ 
* Elliot, Debates, II., 176. ^ Ihid., 197. 



3i6 CONFEDERATION AND CONSTITUTION [1788 

In the twelve years that followed the Declara- 
tion of Independence the American people had 
accomplished much. The war was carried to a 
successful conclusion; the settlements stretching 
along the Atlantic coast came into the possession 
of a wide territory extending over the mountains 
to the Mississippi; state constitutions, laying down 
broad principles of liberty and justice, were formed 
on lines of permanence; a new colonial system for 
the organization and government of the great west 
was formulated, a system that was to be of in- 
calculable value in the process of occupying the con- 
tinent and building up a mighty republic; new 
settlements that showed capacity for self-govern- 
ment and growth were made in the wilderness be- 
yond the Alleghenies. And, finally, a federal Con- 
stitution was formed, having for its purpose the 
preservation of local rights, the establishment of 
national authority, the reconciliation of the partic- 
ular interests and the general welfare. In solving 
the problem of imperial organization, America made 
a momentous contribution to the political knowl- 
edge of mankind. 

With the adoption of the national Constitution 
the first period of the Constitutional history of the 
United States was closed. A suitable and appro- 
priate national organization was now established. 
There remained questions to be answered by the 
coming decades : Was the system suited to the needs 
of an expanding people? Was the distribution of 



1788] ADOPTION 317 

authority between the national government and the 
states so nicely adjusted that the complicated 
political mechanism would stand the strain of local 
interest and national growth? Would the people 
who had founded a national government grow so 
strongly in national spirit and patriotism that there 
would be a real bond of affection and of mutual 
good - will, supplementing and strengthening the 
form^al ties of the law? 

VOL. X. 2« 



CHAPTER XIX 
CRITICAL ESSAY ON AUTHORITIES 

THERE is no general bibliography covering the whole of 
the period treated in this volume ; and it is quite impos- 
sible to mention here all the materials which the author 
has used in writing the foregoing pages. There are, how- 
ever, several lists that will prove helpful to the student and 
investigator. Edward Channing and Albert Bushnell Hart, 
Guide to the Study of American History (1896), §§ 149-156, 
contains titles and references on the most significant features 
of the time. The more important books are critically anno- 
tated in J. N. Earned, Literature of American History (1902), 
152-181. Justin Winsor, Narrative and Critical History of 
America (8 vols., 1889), VII., 233-236, 255-266, has a mass 
of detail, not brought down to the present time. A useful 
list of sources is in Paul L. Ford, Bibliography and Reference 
List of the History and Literature relating to the Adoption of 
the Constitution of the United States (1888). Some of the vol- 
umes treating of different phases of this period contain 
good bibliographical lists and will be mentioned in their 
appropriate places below; the foot-notes to Bancroft, Cur- 
tis, McMaster, and other general works will be found ser- 
viceable. A good list of helpful references is to be found 
in William E. Foster, References to the Constitution of the 
United States (1890). On the period of the Confederation 
many of the authorities are identical with those enumerated 
in C. H. Van Tyne, The American Revolution, chap, xviii. 

GENERAL SECONDARY WORKS 

The most important treatise on this period is George 
Bancroft, History of the Formation of the Constitution of the 

318 



1789] AUTHORITIES 319 

United States of America (2 vols., 1882), text reprinted in 
volume VI. of History of the United States, "author's last 
revision" (6 vols., 1883-1885). The two volumes are fully 
equipped with foot-notes, and with appendixes containing 
valuable documents, some of which are nowhere else ob- 
tainable in print. The books are the product of great toil 
and conscientious effort, but the author's habit of altering 
quotations for literary effect is much to be deplored, as is 
his general method of arranging material. Too great an 
effort is often made to follow events chronologically where 
a topical treatment would add much to the clearness. 
Like the earlier volumes of his History of the United States, 
these are marred by the tone of exaltation with which it is 
almost impossible to write truthful history; and thus, al- 
though he narrates the facts honestly, the reader fails to 
get the right idea of the years of the Confederation. In 
spite of this, all students must acknowledge their gratitude 
to Bancroft's painstaking research and devotion to his* 
torical accuracy. 

A full treatment of the period is in George Ticknor 
Curtis, History of the Origin, Formation, and Adoption of 
the Constitution of the United States (2 vols., 1854), re- 
printed unchanged, as vol. I. of his Constitutional History 
of the United States (2 vols., 1889- 1896). These volumes 
are on the whole accurate, and are written apparently with 
painstaking effort, but without breadth of view. The 
statements of the text are not very carefully supported 
by references to authorities, and the somewhat complex 
and dry style leaves with the reader a feeling of dissatis- 
faction. John Fiske, The Critical Period of American 
History, lyS^-iySg (1888), is an exceedingly interesting and 
popular narrative. The author knew how to tell a story 
with inimitable skill. Although there are not many er- 
rors of fact in the book, and certain fundamental ideas are 
clearly brought out, as an authority the work is altogether 
without scientific standing, because it is little more than a 
remarkably skilful adaptation of a very few secondary 
authorities, showing almost no evidence of first - hand 



320 CONFEDERATION AND CONSTITUTION [1781 

acquaintance with the sotirces. Even Bancroft's re- 
arranged quotations have been taken in some cases with- 
out consulting the sources. It is not strong in its treat- 
ment of the industrial conditions of the period, and there 
is no evidence of any original thinking on the problem 
and work of the convention. The peace negotiations are 
described from the viewpoint of an uncritical admirer of 
Jay's policy. 

Of the utmost importance for information on the life 
of the people is the first volume of John Bach McMaster, 
History of the People of the United States from the Revolution 
to the Civil War (5 vols., published, 1 883-1 900). An 
immense amount of valuable and suggestive material is 
drawn from the newspapers of the time, though no effort 
is made to discuss Constitutional history. Two good 
sketches are to be found in Winsor, America, VII., "The 
Confederation, 1 781-1789," by Justin Winsor, and "The 
Constitution of the United States and Its History," by 
George Ticknor Curtis. Richard Hildreth, History of the 
United States (6 vols., 1849 -1852; subsequent editions 
from same plates), in vol. IV., gives a short, clear, dry, 
and condensed account. Something is to be found in the 
first volume of James Schouler, History of the United 
States under the Constitution (6 vols., 1 880-1 899), and in 
Timothy Pitkin, Political and Civil History of the United 
States (2 vols., 1828). Hermann E. von Hoist, The Con- 
stitutional and Political History of the United States (Lalor's 
transl., 8 vols., several editions, 187 6-1 892), gives a sug- 
gestive and philosophic discussion in volume I., chaps, i. 
and ii. 

Of special service will be found the biographies of 
statesmen of the time, many of which contain considerable 
original material. William Jay, The Life of John Jay, 
with Selections from His Correspondence and Miscellaneous 
Papers (2 vols., 1833), and George Pellew, John Jay (1890), 
are helpful in studying diplomatic conditions. John C. 
Hamilton, History of the Republic of the United States 
as Traced in the Writings of Alexander Hamilton and of His 



1 7^9] AUTHORITIES 321 

Cotemporaries (7 vols., 1857 - 1864, also later editions, 
unaltered), though written with bias, is useful. Valuable 
material will be found in Kate M. Rowland, The Life of 
George Mason, iy2^-iyg2, including His Speeches, Public 
Papers, and Correspondence (2 vols., 1892). The best life 
of Madison in short form is Gaillard Hunt, Life of James 
Madison (1902), not a brilliant but a thoroughly scholarly- 
book, written from the sources. A very able treatment of 
the period of the Confederation is William C. Rives, History 
of the Life and Times of James Madison (3 vols., 1859- 
1868). Among the biographers of greatest service on this 
period are William Wirt Henry, Patrick Henry, Life, 
Correspondence, and Speeches (3 vols., 1891), a work based 
on good material and containing much original matter; 
Moses Coit Tyler, Patrick Henry (1887), is somewhat 
eulogistic, but strong and entertaining; William V. Wells, 
The Life and Public Services of Samuel Adams (3 vols., 
1865); James T. Austin, The Life of Elbridge Gerry, with 
Contemporary Letters (2 vols., 1828-1829); Charles J. Stills, 
The Life and Times of John Dickinson, i'/j2-i8o8 (1891, 
also in Historical Society of Pennsylvania, Memoirs, XHI.) ; 
Moncure D. Conway, Omitted Chapters of History Disclosed 
in the Life and Papers of Edmund Randolph (1888) ; Griffith 
J. McRee, Life and Correspondence of James Iredell (2 vols., 
1 85 7-1 858), containing many original letters, some of con- 
siderable importance; Richard H. Lee, Memoir of the Life of 
Richard Henry Lee and His Correspondence with the Most 
Distinguished Men in America and Europe (2 vols., 1825), 
containing selected letters throwing insufficient light on the 
work and opinions of Lee; Thomas C. Amory, Life of 
James Sullivan, with Selections from His Writings (2 vols., 
1859), giving some information concerning conditions in 
Massachusetts; Henry S. Randall, Life of Thomas Jef- 
ferson (3 vols., 1858), able, eulogistic, old-fashioned; John 
T. Morse, Jr., Thomas Jefferson (1883), Benjamin Franklin 
(1889), John Adams (1885) ; Sydney H. Gay, James Madison 
(1884) ; James Parton, Life and Times of Benjamin Franklin 
(2 vols., 1864); Henry Cabot Lodge, Alexander Hamilton 



322 CONFEDERATION AND CONSTITUTION [1781 

(1882), George Washington (2 vols., 1889), a hurried but 
readable sketch; John Marshall, Life of Washington (5 vols., 
1 804-1 807, 2 vols., 1832), not particularly strong on the 
period of the Confederation; Theodore Roosevelt, Gouver- 
neur Morris (1888). 



GENERAL COLLECTIONS OF SOURCES 

This period can be satisfactorily studied in its political 
and Constitutional aspects from collections of printed 
sources that are fairly accessible. The Journals of Con- 
gress and The Secret Journals of Congress are absolutely 
necessary. The Journals were printed in a number of 
editions, and it is unnecessary here to go into their com- 
plicated bibHography; see Paul L. Ford, "Some Materials 
for a Bibliography of the Official Publications of the 
Continental Congress" (Boston Pubhc Library, Bulletin, 
VIII.-X.); Herbert M. Friedenwald, "Journals and Papers 
of the Continental Congress," with a bibliography (Amer- 
ican Historical Association, Annual Report, 1896, 1., 85-135). 
The Library of Congress has already issued one volume of 
a new edition of the Journals, edited by Worthington 
Chauncey Ford (1904-), which will supersede all previous 
editions. The originals are now in the Library of Congress. 

The standard collection of material on the Constitu- 
tional conventions is Jonathan Elliot, The Debates in the 
Several State Conventions, on the Adoption of the Federal Con- 
stitution (5 vols., 2d ed., 1 83 6-1 845, also subsequent edi- 
tions). Vol. I. contains a series of very important state pa- 
pers, including the journal of the Philadelphia convention, 
valuable letters, and comments on the Constitution; vol. 
V. contains Madison's notes on the Federal Convention and 
on a few debates in the Congress of the Confederation. 
Albert Bushnell Hart, American History Told by Con- 
temporaries (4 vols., 1897-1901), II., chap. XXXV., and 
III., pts. ii., iii., and iv., gives a few selected sources. 

Hardly less in importance are the writings of the states- 
men of the time. There are two editions of Washington's 



1789] AUTHORITIES 323 

works: Writings of George Washington (ed. by W. C. Ford, 
14 vols., 1889-1893) ; Writings of George Washington (ed. by 
Jared Sparks, 12 vols., 1834-183 7), not so carefully edited 
as the Ford edition. Madison's writings appear in three 
forms: The Writings of James Madison, Comprising His 
Public Papers and His Private Correspondence, etc. (ed. 
by Gaillard Hunt, 5 vols, so far published, 1900-), the 
most satisfactory collection of Madison's writings, carefully 
edited, and containing much not to be found in the other 
collections, which are fragmentary; Letters and Other 
Writings of Madison (official ed., 4 vols., 1865); The 
Papers of James Madison . . . His Correspondence and 
Reports of Debates During the Congress of the Confederation, 
and His Reports of Debates . . . in the Federal Convention (ed. 
by Henry D. Gilpin, 3 vols., 1840). These volumes are of 
inestimable value for tracing the work of the Continental 
Congress and of the Federal Convention. Neither of the 
two collections of Hamilton's writings is complete and 
altogether satisfactory: Complete Works of Alexander 
Hamilton (ed. by H. C. Lodge, 9 vols., 1885-1886); The 
Works of Alexander Hamilton, Comprising His Corre- 
spondence (ed. by J. C. Hamilton, 7 vols., 18 50-1 8 51). The 
so-called federal edition of the Works of Hamilton (also 
edited by Lodge) is a reprint of the edition of 1 885-1 886 
and without substantial alteration (12 vols., 1904). Of 
Franklin's works, The Complete Works of Benjamin Franklin 
(ed. by John Bigelow, 10 vols., 1887-1888) is the best yet 
published; see also The Works of Benjamin Franklin . . . 
with Notes and a Life of the Author (ed. by Jared Sparks, 
10 vols., 1 840-1 850). A new set of Franklin's writings, in 
ten volumes, edited by Albert Smythe, is in process of 
collection and publication. For John Adams, The Works 
of John Adams . . . with a Life of the Author (ed. by C. F. 
Adams, 10 vols., 1850 -1856), is a useful and entirely 
satisfactory collection. Writings of James Monroe (ed. 
by Stanislaus M. Hamilton, 7 vols., 1898 -1903), throws 
some light on the political events of the period as seen by 
one of the inferior statesmen of the time. Especially useful 



324 CONFEDERATION AND CONSTITUTION [1781 

for all diplomatic matters is The Correspondence and Public 
Papers of John Jay (ed. by Henry P. Johnston, 4 vols., 
1890-1893), furnishing us, however, with but a small part 
of Jay's voluminous correspondence. On the western 
question, and on the last days of the Confederation, aid 
may be had from Charles R. King, The Life and Corre- 
spondence of Rufus King, Comprising His Letters, Private 
and Official, His Public Documents, and His Speeches (6 
vols., 1 894-1 900), full of original material, but with a great 
deal of secondary comment which is not especially helpful. 
The best edition of the works of Jefferson yet issued is The 
Writings of Thomas Jefferson (ed. by P. L. Ford, 10 vols., 
1 892-1 899). An older edition is The Writings of Thomas 
Jefferson: Being His Autobiography, Correspondence . . . 
and Other Writings (ed. by H. A. Washington, 9 vols., 
1853-1854). An edition in twenty volumes, which it is 
claimed will be more nearly complete than any previous 
edition, is in course of publication by the Thomas Jefferson 
Memorial Association (11 vols, so far published, 1903-1905). 

THE TREATY OF PEACE 

The most important sources are found in The Revolution^ 
ary Diplomatic Correspondence of the United States (ed. by 
Francis Wharton, 6 vols., 1889). The first volume is 
largely given up to comments by Mr. Wharton on the 
men and events of the period. He believes in the gen- 
eral trustworthiness of Vergennes, and sympathizes with 
Franklin in his attitude on the questions that arose at 
Paris. The volumes, containing long extracts from 
Adams's and Franklin's diaries and other like material, in 
addition to the regular formal diplomatic correspondence, 
leave little to be desired for understanding the main course 
of the negotiations. The last entry is under date of March 
4, 1785. Wharton makes his position clear also in his 
Digest of International Law (3 vols., 1886), III., App. 
Useful also is Diplomatic Correspondence of the American 
^.evolution (ed. by Jared Sparks, 12 vols., 1829-1830, also in 



1783] AUTHORITIES 325 

6 vols., 1857), a series which has the disadvantage of 
Sparks's method of not copying materials with absolute 
exactness. Sparks is strongly of the opinion that Jay was 
in error. Essential for the appreciation of the general 
diplomatic condition is Henri^Doniol, Histoire de la Par- 
ticipation de la France a V Etablissement des Etats-Unis 
d'Amerique (5 vols, and suppl., 1 886-1 900). Doniol natu- 
rally believes that the Americans' were unjust in their suspi- 
cions. In addition to the sources already named, use must 
be made of The Correspondence and Public Papers of John 
Jay (Johnston's ed., II. and III.), and the works of Franklin 
and Adams. Edward Everett Hale and Edward E. Hale, 
Jr., Franklin in France (2 vols., 1 887-1 888), gives much 
source-material, most important being the letters of Oswald 
and Oswald's so-called "Journal." Strong defences of 
Jay's position are to be found in "The Peace Negotiations 
of 1 782-1 783," written by John Jay, a descendant of the 
commissioner, in Winsor, America, VII. ; and in George Pel- 
lew, John Jay. Theodore Lyman, The Diplomacy of the 
United States (2d ed., 2 vols., 1828), contains considerable 
original material, but the treatment is on the whole now 
antiquated. Documents used by Bancroft are in Adolphe 
de Circourt, Histoire de V Action Commune ... (3 vols., 
1876). Of especial interest as giving a new view of the 
plans and aims of France is F. J. Turner, "The Policy of 
France toward the Mississippi Valley in the Period of Wash- 
ington and Adams," in American Historical Review, X., 249- 
279. Professor Turner has collected evidence which may 
indicate the aim of France during the Revolution to suc- 
ceed Spain in the possession of the west. 

For the English conditions, a most important source is 
Edmond George Petty, Lord Fitzmaurice, Life of William, 
Earl of Shelburne . . . with Extracts from His Papers and 
Correspondence (3 vols., 1875-1876). Use may also be made 
of W. Bodham Donne, The Correspondence of King George HI. 
with Lord North, lydS-iySs (2 vols,, 1867); John Adolphus, 
History of England from the Accession to the Decease of George 
in. (7 vols., 1840-1845); W. E. H. Lecky, History of Eng- 



326 CONFEDERATION AND CONSTITUTION [1781 

land in the Eighteenth Century (8 vols,, 18 78-1 890), IV.; 
Lord John Russell, Life and Times of Charles James Fox 
(3 vols., 1859-1866); George Thomas, Earl of Albemarle, 
Memoirs of the Marquis of Rockingham (2 vols., 1852). 



FINANCIAL CONDITIONS OF THE CONFEDERATION 

The investigator is chiefly dependent on the Journals 
of Congress, although much valuable material is also con- 
tained, for the earlier time, in Francis Wharton, Diplo- 
matic Correspondence. A learned but arid and badly- 
arranged work is William G. Sumner, The Financier and 
the Finances of the American Revolution (2 vols., 1891), 
filled with information, but absolutely unusable by the 
average reader. Very helpful is Charles J. Bullock, 
Finances of the United States, lyj^-iySg, with Especial Ref- 
erence to the Budget (University of Wisconsin, Bulletins, 
Economics, Political Science, and History Series, I., No. 2, 
1895) ; contains a good bibliography. Also Henry Phillips, 
Historical Sketches of the Paper Currency of the American 
Colonies (2 vols., 1 865-1 866). Some use may be made of 
Albert S. Bolles, The Financial History of the United States 
(3 vols., 1879-1886), L, 1774-1789; also Henry Bronson, 
"A Historical Account of Connecticut Currency, Continen- 
tal Money, and the Finances of the Revolution" (New 
Haven Historical Society, Papers, I., 1865); E. P. Ober- 
holtzer, Robert Alorris (1903); Samuel Breck, Historical 
Sketch of Continental Paper Money (1843). For a short 
treatment, see Davis R. Dewey, Financial History of the 
United States (1903), chap. ii. 

TROUBLES WITH THE ARMY 

The subject is fully treated in chaps, viii. and ix. of 
Louis C. Hatch, The Administration of the American 
Revolutionary Army {Harvard Historical Studies, X., 1904), 
with bibliography. The Newburg addresses are in Journals 
of Congress under the date April 29, 1783. Besides the writ- 



I 



1789] AUTHORITIES 327 

ings of the men of the time that have already been referred 
to, use should be made of Francis S. Drake, Life and Corre- 
spondence of Henry Knox, Major-General in the American 
Revolutionary Army (1873); Noah Brooks, Henry Knox, a 
Soldier of the Revolution ( 1 900) ; Octavius Pickering and C. W. 
Upham, The Life of Timothy Pickering (4 vols., 1867-1873) ; 
B. J. Lossing, The Life and Times of Philip Schuyler (2 vols., 
1 860-1 87 3); Jared Sparks, The Life of Gouverneur Morris, 
with Selections from His Correspondence and Miscellaneous 
Papers (3 vols., 1832), containing valuable original material. 

COMMERCIAL AND INDUSTRIAL CONDITIONS 

Of immense service is John B. McMaster, History of 
the People of the United States, I., though his facts are with- 
out arrangement except for graphic effect. William B. 
Weeden, Economic and Social History of New England, 
i620-ij8g (2 vols., 1890), is a necessity. A monograph by 
Dr. Guy H. Roberts, The Foreign Commerce of the United 
States during the Confederation, which I have been permitted 
to see in manuscript, will be to the student of that topic, 
when published, indispensable. In reaching the con- 
clusions in the foregoing pages, many sorts of original 
materials have been used, and reliance placed both on 
facts and testimony. Special attention may be called to 
"Letters of Stephen Higginson " and "Letters of Phineas 
Bond" (American Historical Association, Annual Report, 
1896, I., 513-659, 704-841); Jeremy Belknap, History of 
New Ham.pshire (3 vols., 1784-1792, 2d ed., 1812); Penn- 
sylvania Archives, 1 783-1 786; Jean Pierre Brissot de War- 
ville, New Travels in the United States (2 vols., 2d ed., 
1794); Francois J. Chastellux, Travels in North A.merica, 
lySo-iySz (2 vols., 1787, 2d ed., 1828); Literary Diary of 
Ezra Stiles (ed.by F. B. Dexter, 3 vols., 1901), III. ; Isaac W. 
Hammond, New Hampshire Town Papers, XIII. Of great 
service are the writings of the statesmen, and the Diplo- 
matic Correspondence, lySj-iySg. Of service especially for 
statistics are David Macpherson, Annals of Commerce (4 



328 CONFEDERATION AND CONSTITUTION [17^2 

vols., 1805); Tench Coxe, A View of the United States of 
America (1794); Lord Sheffield, Observations on the Com- 
merce of the American States (6th ed-., 1 784) ; Timothy Pitkin, 
Statistical View of the Commerce of the United States (181 6); 
American State Papers, Commerce and Navigation; John 
Drayton, A View of South-Carolina (1802). 

FOREIGN RELATIONS AFTER THE PEACE 

On this topic, besides the authorities described above, 
we have full information in The Diplomatic Correspondence 
of the United States, lySj-i^Sg (3 vols., 1837, also 7 vols., 
1 833-1 834). This indispensable material suffers from being 
ill-arranged. In addition, use must be made of the writings 
of Adams, Franklin, Jefferson, and especially of Jay. The 
general reader may read Theodore Lyman, The Diplomacy 
of the United States (2 vols., 1828), I., chaps, iv.-viii. ; 
William H. Trescot, The Diplomatic History of the Ad- 
ministrations of Washington and Adams (1857), chap. i. ; 
and John W. Foster, A Century of American Diplomacy 
(1900), chap. iii. Good accounts of the trouble with Spain 
are found in Bancroft and McMaster. Use can be made of 
George Pellew's Jay. Valuable references to the subject 
are to be found in Correspondence and Public Papers of 
Jay (Johnston's ed.); Writings of Madison (Hunt's ed.); 
Writings of Monroe (S. M. Hamilton's ed.); Writings of 
Jefferson (P. L. Ford's ed.) ; W. W. Henry, Patrick Henry; 
and W. C. Ford, The United States and Spain in 17 go, 
introduction. The cgnditions in the southwest are well 
treated by Charles E. A. Gayarre, History of Louisiana 
(in various editions, 4th ed., 4 vols., 1903). The con- 
spiracy in Kentucky has been very well treated in Theo- 
dore Roosevelt, Winning of the West, and the various 
books on the history of Kentucky mentioned below. 
Special reference should be made to John Mason Brown, 
The Political Beginnings of Kentucky (Filson Club, Publi- 
cations, No. 6, 1889), written for the purpose of exculpating 
the author's ancestor; and above all to Thomas M. Green, 



1789] AUTHORITIES 329 

The Spanish Conspiracy : a Review of Early Spanish Move- 
ments in the South-west, Containing Proofs of the Intrigues of 
James Wilkinson and John Brown, etc. (1891), written to 
demonstrate that John Mason Brown was wrong in his 
conclusions. General James Wilkinson, Memoirs of My 
Own Times (3 vols., 181 6), is an historical source com- 
parable in authority to the writings of Benvenuto Cellini 
or the lamented Baron Munchausen, but he gives some 
account of his machinations. Conclusive proof of Wilkin- 
son's rascality is to be found in William R. Shepherd, 
" Wilkinson and the Beginnings of the Spanish Conspiracy" 
{Avierican Historical Review, IX., 490-506), and "Papers 
Bearing on James Wilkinson's Relations with Spain, 1787- 
1789" {ihid., 748-766). 

For our relations with England we have full material in 
Diplomatic Correspondence, lyS^-iySg, and in the works of 
John Adams and John Jay. As to the retention of the 
western posts, see A. C. McLaughlin, "The Western Posts 
and the British Debts" (American Historical Association, 
Annual Report, 1894, 413-444). Our early relations with 
the Barbary pirates are discussed in Eugene Schuyler, 
American Diplomacy (1886). 

WESTERN HISTORY 

Theodore Roosevelt, The Winning of the West (4 vols., 
1 889-1 896), covers the period 17 73-1807; a brilliant work 
and on the whole trustworthy, though written in apparent 
haste; a graphic picture of the life of the woodsmen and 
their deeds in winning the Mississippi basin. For the 
northwest, the best general treatment is Burke Aaron 
Hinsdale, The Old Northwest, the Beginnings of our Colonial 
System (2d ed., revised, 1899), a carefully prepared and 
lucidly written volume with a good bibliography. Of more 
doubtful utility is Justin Winsor, The Westward Movement: 
the Colonies and the Republic West of the Alleghanies, 1763- 
1798 (1897), fully illustrated with maps. Covering the 
period in a scholarly but uninteresting fashion, it contains 



330 CONFEDERATION AND CONSTITUTION [1780 

a vast amount of information. On the attitude of Maryland, 
see Herbert B. Adams, Maryland's Influence upon Land 
Cessions to the United States {Johns Hopkins University 
Studies, 3d series, III., No. i., 1885). An excellent 
treatment of the Ordinance of 1787, with a good bibliog- 
raphy, is to be found in Jay A. Barrett, Evolution of the 
Ordinance of lySy, with an Account of the Earlier Plans for 
the Government of the Northwest Territory {University of 
Nebraska Seminary Papers, No. i, 1891). On this subject 
see also James C. Welling, "The States'-Rights Conflict 
over the Public Lands" (American Historical Association, 
Papers, III., No. 2, p. 167) ; found also in Welling, Addresses, 
Lectures, and Other Papers (1903). John M. Merriam, 
"The Legislative History of the Ordinance of 1787" 
(American Antiquarian Society, Proceedings, new series, 
v., 303). John Marshall's report on the question of Con- 
necticut title is in American State Papers, Public Lands, 
I., 94-98. See also chap. vii. of King, Ohio, First Fruits of 
the Ordinance of ijSy (2d ed., 1903); Jacob P. Dunn, 
Indiana (1888), a very careful examination of the whole 
subject, including authorship; Thomas M. Cooley, Michigan 
(1885) ; William F. Poole, "Dr. Cutler and the Ordinance of 
1787" {North American Review, CXXII., 229-265). Of 
special service are Life, Journals, and Correspondence of Rev. 
Manasseh Cutler (ed. by W. P. and Julia P. Cutler, 2 vols., 
1888), containing much original material, including Cut- 
ler's journal. Use can be made of Pickering and Upham, 
Life of Pickering; Shosuke Sato, History of the Land Ques- 
tion in the United States {Johns Hopkins University Studies, 
4th series, Nos. 7-9) ; George W. Knight, History and Man- 
agement of Land Grants for Education in the Northwest 
Territory (American Historical Association, Papers, I., 
No. 3); Rowena Buell, Memoirs of Rufus Putnam (1903); 
W. H. Smith, The St. Clair Papers (2 vols., 1882). The 
early history of the northwest can be followed clearly only 
by reference to the Journals of Congress. 

The history of the country south of the Ohio is well 
treated in a good many secondary authorities, notably 



i 



1788] AUTHORITIES 331 

James Phelan, History of Tennessee, the Making of a State 
(1888) ; Nathaniel S. Shaler, Kentucky (1885) ; Lewis Collins, 
History of Kentucky (revised ed., 2 vols., 1874), a work 
containing a vast amount of information, not very attrac- 
tive to the general reader; A. W. Putnam, History of Middle 
Tennessee; or, Life and Times of Gen. James Robertson 
(1859), containing much original material, but diffuse and 
wordy; James G. McG. Ramsey, The Annals of Tennessee 
to the End of the Eighteenth Century (1853), another store- 
house of information, including documentary material of 
great assistance to the investigator; John Haywood, 
Civil and Political History of Tennessee (1823 and 1891), a 
work depending in a measure upon the narratives of 
frontiersmen, but, though to be used with care, of real 
service to the investigator. Most suggestive is Frederick 
J. Turner, "Western State-Making in the Revolutionary 
'Ev3,'' {American Historical Review, I., 70-87, 251-269); 
it discusses the numerous efforts to make states in the 
transmontane region. See also George H. Alden, "The 
State of Franklin" {American Historical Review, VIII., 
271-289), and "The Evolution of the American System of 
Forming and Admitting New States into the Union " (Amer- 
ican Academy of Political and Social Science, Annals, 
XVIII., 469-479). The relations of the subject to the 
west during the Revolution appear in C. H. Van Tyne, The 
American Revolution, chap. xv. 

PAPER MONEY 

Information on this subject abounds in the writings of the 
leading men of the time, Washington, Madison, Jay, and 
others. Bibliography in Bullock, ut supra {Wisconsin 
Bulletin, 1895). W. Z. Ripley, Financial History of Vir- 
ginia, i6og-iyy6 {Columbia Studies, IV., No. i, 1893), gives 
a few pages to this period, and a bibliography. Jeremy 
Belknap, Nerv Hampshire, is also of use. On affairs in 
Rhode Island, see Samuel G. Arnold, History of Rhode 
Island (2 vols., 1859 -i860); Brissot de Warville, New 



2,Z2 CONFEDERATION AND CONSTITUTION [1786 

Travels, 1794, see above); W. R. Staples, Rhode Island in 
the Continental Congress (1870); and F. G. Bates, Rhode 
Island and the Formation of the Union {Columbia Studies, X., 
No. 2, 1898), a careful study of the relations of Rhode 
Island to the federal government in the period of the Con- 
federation. On the case of Trevett vs. Weeden, see James 
B. Thayer, Cases on Constitutional Law (2 vols., 1894- 
1895), I., 73-78 ; Brinton Coxe, An Essay on Judicial Power 
and Unconstitutional Legislation (1893); James M. Vamum, 
The Case, Trevett against Weeden (1787). Bancroft and 
Curtis have something to say of paper money, but of the 
general accounts the most helpful is found in McMaster, 
History of the People of the United States, I., chap. iii. 

SHAYS'S REBELLION 

Bibliography in Berkshire Athenaeum, Quarterly Bulletin 
(October, 1 903) . The most useful source is George R. Minot, 
The History of the Insurrections in Massachusetts, in the 
Year 1786, and the Rebellion Consequent Thereon (1788; 2d 
ed., 18 10), written by a man who took an active part in 
the affairs of his day. John S. Barry, History of Massa- 
chusetts (3 vols., 185 5- 1857), gives a clear account with 
abundant references. Some material is in Noah Brooks, 
Henry Knox; A. B. Hart, American History Told by Contem- 
poraries, III., chap. ix. The town histories contain much 
valuable information. See Charles F. Adams, History of 
Braintree . . . and . . . Qiiincy (1891) ; J. G. Holland, History 
of Western Massachusetts (2 vols., 1855); William Lincoln, 
History of Worcester (1837). In the preparation of this 
chapter some helpful references have been received from an 
interesting monograph by Dr. Joseph P. Warren, on 
Shays 's rebellion, which is to be published. 

PROPOSALS TO AMEND THE ARTICLES OF CONFEDERATION 

For the examination of this subject the Journals of 
Congress are a necessity. The most important original 



1787] AUTHORITIES 333 

materials have, however, been gathered together in a Httle 
pamphlet, entitled. Proposals to Amend the Articles of 
Confederation, lySi-ijS^ {American History Leaflets, No. 
I, 1896). Resolutions and reports are also brought to- 
gether in Jonathan Elliot, Debates, I., 85-116. For the 
Annapolis convention, especially helpful are William C. 
Rives, Life of Madison; J. Thomas Scharf , History of Mary- 
land (3 vols., 1879); The Writings of Madison (Hunt's ed.), 
II.; Kate M. Rowland, Life of George Mason, II. 

THE FEDERAL CONVENTION 

The fullest discussions of the convention are those of 
Bancroft and Curtis; Hildreth, Fiske, McMaster, and other 
general writers all contain accounts more or less elaborate, 
and there is an arid, concise condensation in Catnhridge 
Modern History, VII. (1903). The subject can be exam- 
ined satisfactorily only in the original materials. Near- 
ly all the information we have of the proceedings of the 
convention is contained in the official journal, in the 
minutes taken by Madison, Yates, King, Paterson, 
Pierce, and Hamilton, and in various letters written while 
the convention was in progress. The official journal is pub- 
lished in Elliot, Debates, I., and directly from the manuscript 
in the Documentary History of the Constitution, iyS6-i8jo (5 
vols., 1894-1905), I. Madison's notes, the chiefest source, 
have been variously published. The best edition is in 
Writings of Madison (Hunt's ed.). III., IV., the edition 
used by the writer of the present volume. Other editions 
are H. D. Gilpin, The Papers of James Madison (3 vols., 
1840, 2d ed., 1841) ; Elliot, Debates, V., 109-565 ; Erastus H. 
Scott, erroneously entitled Journal of the Federal Conven- 
tion (1893), a copy of Gilpin. An elaborate reproduction 
appears in the Documentary History of the Constitution, 
III. King's minutes are to be found in King, Life and 
Correspondence of Rufus King, I., 587-621 ; Yates's notes in 
Elliot, Debates, I., 389-479; Paterson's notes in American 
Historical Revieiv, IX., 310-340; Alexander Hamilton's 

VOL. X. — 23 



334 CONFEDERATION AND CONSTITUTION [1787 

notes, ibid., X., 97-109; Pierce's notes, ibid., III., 310-334. 
The bibliography of the letters written by the leaders of the 
Philadelphia convention appears in J. Franklin Jameson, 
"Studies in the History of the Federal Convention of 1787 " 
(American Historical Association, Annual Report, 1902, I.), 
which also contains very important treatment of the con- 
vention. Of service to the investigator is William M. 
Meigs, Growth of the Constitution in the Federal Convention 
of lySy (1900). Luther Martin's "Letter," or "Genuine 
Information," is in Elliot, Debates, L, 344-389. On "the 
law of the land " and powers of the judiciary, see Brinton 
Coxe, Essay on Judicial Power, etc. (1893); William M. 
Meigs, "The Relation of the Judiciary to the Constitution" 
{American Law Review, 1885, 175-203) ; J. B. Thayer, Cases, 
I., 48-94; Austin Scott, "Holmes vs. Walton: the New Jer- 
sey Precedent" {American Historical Review, IV., 456- 
469). For Pinckney's plan, see ibid., IX., 735-747; also 
American Historical Association, Annual Report, 1902, I., 
111-132. On the compromises, see Max Farrand, "Com- 
promises of the Constitution" {American Historical Re- 
view, IX., 479-489). 

THE ADOPTION OF THE CONSTITUTION 

For bibliography, see Paul L. Ford, Bibliography and 
Reference List, mentioned above; and J, Franklin Jameson, 
in American Historical Association, Annual Report, 1902, I. 
The most essential material is included in Jonathan Elliot, 
Debates, II., Ill,, IV. Ample treatment in George Ban- 
croft, History of the Constitution, II., and G. T. Curtis, 
History of the Constitution, II. A few works treating 
the subject monographic ally or containing special collec- 
tions of sources are indispensable, notably J. B. McMaster 
and F. D. Stone, Pennsylvania and the Federal Constitution, 
1787-1788 (1888); Samuel B. Harding, The Contest Over 
the Ratification of the Federal Constitution in the State of 
Massachusetts {Harvard Historical Studies, 1896), a thor- 
oughly satisfactory monograph with a good bibliography; 



1788] AUTHORITIES 335 

Orin G. Libby, The Geographical Distribution of the Vote 
of the Thirteen States on the Federal Constitution, ijSy- 
iy88 (University of Wisconsin, Bulletin, Economics, Polit- 
ical Science, and History Series, I., No. i, 1894), contain- 
ing a good bibliography. Use can be made of Debates 
and Proceedings in the Convention of the Commonwealth of 
Massachusetts . . . iy88 (1856); Joseph B. Walker, A 
History of the New Hampshire Convention . . . i'/88 (1888) ; 
Belknap Papers (Massachusetts Historical Society, Collec- 
tions, 5th series, vols. II. and III.; 6th series, vol. IV.); 
Debates and other Proceedings of the Convention of Virginia 
(2ded., 1805); "Letters on . . . the Federal Constitution in 
Virginia" (Massachusetts Historical Society, Proceedings, 
2d series, 1903). 

The most important material showing the differences of 
opinion concerning the Constitution is to be found in 
Paul L. Ford, Essays on the Constitution of the United States, 
Published during its Discussion by the People, 1^8^-1^88 
(1892); Paul L. Ford, Pamphlets on the Constitution of the 
United States, Published during its Discussion by the People, 
i'/8'/~i'/88 (1888). Twenty-two of these essays and pam- 
phlets appear in E. H. Scott, The Federalist and Other Con- 
stitutional Papers (2 vols., 1894). For a discussion of the 
movement for a second convention, see the essay by E. P. 
Smith, in Essays in the Constitutional History of the United 
States in the Formative Period, ijy^-ij8g, edited by J. F. 
Jameson (1889), which contains a number of other essays 
helpful on this period. 

There are several editions of The Federalist besides those 
contained in the collections of Hamilton's writings; the 
best edited by P. L. Ford (1898) ; a good one edited by H. 
B. Dawson (1863) ; another edited by E. G. Bourne (1901) ; 
another edited by E. H. Scott (1894). The authorship of 
the disputed numbers of The Federalist is discussed by E. G. 
Bourne and P. L. Ford in the American Historical Review, 
II., 443-460, 675-687. Important for studying the origin 
of the Constitution are James H. Robinson, "The Original 
and Derived Features of the Constitution" (American 



336 CONFEDERATION AND CONSTITUTION [1788 

Academy of Political and Social Science, Annals, I., 203- 
243) ; Alexander Johnston, "The First Century of the Con- 
stitution" (New Princeton Review, IV., 175-190); W. C. 
Morey, "The Genesis of a Written Constitution" (American 
Academy of Political and Social Science, Annals, L, 529- 
557); Charles E. Stevens, Sources of the Constitution of the 
United States Considered in Relation to Colonial and English 
History (1894). 

THE CHARACTER OF THE CONSTITUTION 

The books and articles on this subject are legion. At- 
tention may be called especially to the able treatment in 
J. I. C. Hare, American Constitutional Law (2 vols., 1889), 
the earlier chapters; Roger Foster, Commentaries on the 
Constitution of the United States (i vol. published, 1895-). 
Joseph Story, Commentaries on the Constitution (Cooley's 
or Bigelow's ed., 1873 or 1891, 2 vols.). For the state- 
sovereignty interpretation, the best treatments are Alex- 
ander H. Stephens, A Constitutional View of the Late War 
between the States (2 vols., 1868-1870); John R. Tucker, 
The Constitution of the United States (2 vols., 1899). The 
contemporary notion of the Constitution as a compact 
analogous to the social compact is given in A. C. McLaugh- 
lin, "Social Compact and Constitutional Construction" 
{American Historical Review, V., 467-490). 



INDEX 



Abdrahaman, Tripolitan am- 
bassador, 1 06, 107. 

Adams, John, peace commis- 
sioner, 6; in Holland, 7; ne- 
gotiations, 24-29; on Jay, 
31; minister to England, 
102-105; and Tripolitan am- 
bassador, 106. 

Adams, Samuel, and Constitu- 
tion, 279, 293. 

Amendment, of Confederation, 
attempts at, 53-55, 79, 82-S6, 
1 71-173, 175; of Constitu- 
tion recommended, 295, 304, 

311- 

Ames, Fisher, Federalist, 291. 

Annapolis convention, genesis, 
179-181; call, 181; rrieeting, 
182. 

Anti-Federalists, location, 281, 
289, 299, 305; in Virginia, 298. 

Armed Neutrality, 9. 

Armstrong, John, Newburg ad- 
dress, 65. 

Army, American, discontent in, 
59; half-pay, 59; address to 
Congress, 60; agitation, 60- 
68; and Union, 62; Newburg 
address and Washington, 63- 
67; pay for oflicers, 67; Cin- 
cinnati, 67; mutiny, 68; land 
bounties, 113; bibliography, 
326. 

Baldwin, Abraham, vote on 
representation, 233 ; on grand 
committee, 235. 



Barbary States, depredations, 
90; demands, 106. 

Barren, Nathaniel, Federalist, 
294. 

Bedford, Gunning, of small- 
state party, 209, 230, 238; 
on grand committee, 234. 

Belknap, Jeremiah, on finan- 
cial crisis, 82. 

Bibliographies of period 1781- 
1788,318; of adoption of Con- 
stitution, 318, 334. 

Bill of rights, in Ordinance 
of 1787, 121; demand for, 
in Constitution, 283, 288, 

305- 
Biogi-aphies of period 1781- 

1788, 320-322, 
Boone, Daniel, in Kentucky, 

131. 132. 

Boonesborough, settled, 132. 

Boundaries, peace negotiations, 
II, 24, 27-29; French atti- 
tude, 14; West Florida, 27, 
29, 91, 92. 

Bowdoin, James, and Shays's 
rebellion, 1 61-164; defeated 
for re-election, 164; Federal- 
ist, 291. 

Brearley, David, of small-state 
party, 216. 

Btitler, Pierce, in Federal con- 
vention, 190, 255. 

Canada, Franklin desires, 11. 
Chase, Samuel, Anti-Federal- 
ist, 295. 



337 



SsS CONFEDERATION AND CONSTITUTION 



Cincinnati, Society, 67; oppo- 
sition, 289. 

Clinton, George, and confeder- 
ate impost, 83; Anti- Fed- 
eralist, 280, 305, 308. 

Coercive power, needed by 
Confederation, 169, 170, 175, 
177, 178; proposed, 171; 
Madison's suggestions, 178; 
in Virginia plan, 194; de- 
bated in convention, 202; 
in New Jersey plan, 214, 217, 
224; and direct legislation, 
245; and supremacy of Con- 
stitution, 248; of law or 
arms, 315. 

Commerce, travel in 1783, 45; 
confederate regulation, 50, 
84-86, 173, 180; effect of 
Revolution, 71-75; growth 
under navigation acts, 73; 
English post-Revolutionary 
regulations, 74, 84, 105; 
rigidity, 74; new European 
and Oriental, 76, 90; condi- 
tions in 1786, 77; conflicting 
state regulations, 86, 173; 
treaties, 90; proposed Span- 
ish treaty, 97 ; federal powers, 
261; bibliography, 327. 

Concord, Mass., court attacked, 
160, 162. 

Confederation, Articles in force, 
47; powers, 47-50, 53; why 
inadequate, 49; division of 
powers, 49, 176, 178; im- 
potency, 50, 86, 165, 173; 
executive, 51, 52; attempts 
to amend Articles, 53-55, 79, 
82-86, 171-173, 175; and 
Shays's rebellion, 165; need 
of coercive power, 169, 170, 
i75> 177; convention to re- 
vise proposed, 170, 172; ob- 
servance of treaties, 174; Con- 
gress calls convention, 183; 
Congress and draft of Con- 
stitution, 277; bibliography, 
3 1 8-324 ; bibliography of pro- 



posed amendments, 332. See 
also Commerce, Finances, 
Foreign affairs. 

Congress, Federal, Virginia plan 
of, 192; proportional repre- 
sentation, 197-199, 207-211, 
227-239; bicameral, 199, 226; 
election for House, 199, 204; 
origin of legislation, 201 ; pow- 
ers, 201, 253; veto on state 
laws, 202, 205-207, 246; elec- 
tion for Senate, 205 ; commer- 
cial powers ,261-265. ^^^ ^^^(^ 
Continental Congress. 

Connecticut, cedes western 
claim, no, 112; Western 
Reserve, 112; no paper 
money, 143; ratification con- 
vention, 286. 

Connecticut compromise, 225, 
226, 229, 

Constitution, Federal, doctrine 
of judicial interpretation, 
152; greatness, 272; genesis, 
273-276; character, 301, 314, 
315; bibliography of charac- 
ter, 336. See also Federal 
convention. Ratification. 

Constitutions, state, 42,47; con- 
trol over legislation, 152, 250. 

Continental Congress, instruc- 
tions to peace commission- 
ers, 10, 16, 17; as central 
government, 47; and army, 
67; and the mutiny, 68; 
meets at Princeton, 68; help- 
lessness, 68. See also Con- 
federation. 

Convention, discovery of con- 
stituent, 42. See also Fed- 
eral convention. 

Corbin, Francis, Federalist, 302. 

Courts, agitation against, 157; 
attacked in Massachusetts, 
160-162. 5e^ a/50 Judiciary. 

Cutler, Manasseh, in Ohio com- 
pany, 119; agent before Con- 
gress, 120, 126; and author- 
ship of Ordinance, 124. 



INDEX 



339 



Dane, Nathan, and North- 
west Ordinance, 125 ; Anti- 
Federalist, 277. 

Davie, William, on grand com- 
mittee, 235; on slave rep- 
resentation, 259. 

Dav, Luke,in Shays's rebellion, 
i'63. 

Dayton, Jonathan, of small- 
state part 3'-, 233. 

Debts to British merchants, 
treaty pro vision, 12, 25, 26; 
dispute over treaty, 104, 105. 
See also Public debt. 

Delaware, ratification conven- 
tion, 286. 

Derby, E. H., privateering, 72; 
East Indian trade, 76. 

Dickinson, John, in Federal 
convention, 190; on popular 
election, 205; of small-state 
party, 209, 211, 213. 

Division of powers, problem of 
Union, 176, 178, 223; in 
Federal convention, 195-197, 
221-226, 241-244, 254. 

East Indian trade, 76. 

Economic conditions, post-Rev- 
olutionary, 69-71, 78; bibli- 
ography, 327. See also Com- 
merce, Finances. 

Education, provision in North- 
west Ordinance, 121 ; public- 
land sections, 127. 

Ellsworth, Oliver, in Federal 
convention, 189 ; of small- 
state party, 209; on national 
government , 223; compro- 
mise, 229; on grand com- 
mittee, 234; on Anti-Feder- 
aiism in Virginia, 2 98; on 
Pe leral government, 315. 

England, in 1782, 3, 9; Rock- 
ingham ministry, 4-6; post- 
Revolution arv trade policy, 
74, 84, 105; indillerence tow- 
ard America, S9, 107: reten- 
tion of frontier posts, loi, 



104; first minister to, 102, 
103; bibliography, 329. See 
also Peace of 1783. 

Executive department, under 
Confederation, 51, 52; fed- 
eral, in Virginia plan, 193; 
requirements, 266; election 
of president, 267-270. 

Exeter, New Hampshire, mob, 
147. 

Federal convention, genesis, 
179-182; call, 182, 183; dele- 
gates, 184-190; organization, 
190-192; national party, 191, 
207; documents, 192; Vir- 
ginia plan, 192-194; veto of 
state laws, 194, 205-207, 
246, 249; Pinckney's plan, 
194 ; national government and 
division of powers, 195-197, 
221-226, 237, 241-244; pro- 
porti onal representation ,197- 
199, 207-211, 227-239; sniail- 
state party, 198, 20S, 229, 
240; election for House, 199, 
204; coercion of states, 202, 
214, 224, 244, plan assumes 
shape, 203; election for Sen- 
ate, 205; adoption of Virgir.ia 
plan, 211, 219; New Jersey 
plan, 212-220; Constitution 
as supreme lavv% 215,246-252; 
Hamilton's plan, 218, 219; 
Connecticut compromise, 225, 
226, 229 ; bicam_eral legislat- 
ure, 226 ; grand committee en 
representation, 234; its com- 
promise report, 235; com- 
promise adopted, 238, 239; 
success of national party, 
240 ; direct federal legislation, 
242-245; powers of Congress, 
253; proportionment of rep- 
resentation, 254-258; influ- 
ence of West, 254, 256, 
257 ; slave representation, 
255, 257-260; sectional lire'-, 
260, 265; commercial powers, 



340 CONFEDERATION AND CONSTITUTION 



261, 265; slave-trade, 262- 
265; requirements of execu- 
tive, 266; separation of pow- 
ers, 267 ; election of president, 
267-270; dissatisfaction with 
draft, 270-272; signing, 272; 
greatness of result, 272; 
genesis of Constitution, 273- 
276; bibliography, 318-324, 

333- 

Federalist, The, 307, 30S, 335. 

Federalists, origin, 280; charac- 
ter, 290, 291. 

Finances, loans, 31, 56; lack 
of central control, 50; super- 
intendent, 51; attempted im- 
post, 53-55, 79, 82, 83; 
dire straits, 55, 58, 82; over- 
drafts, 57; -failure of requi- 
sitions, 69, 80; salaries un- 
paid, 87; bibliography, 326. 
5^^ a/50 Money, Paper money, 
Taxation. 

Findley, William, Anti - Feder- 
alist, 283. 

Fisheries, and treaty of peace, 
25, 26. 

Floridas, boundary of West, 27, 
29,91,92; ceded to Spain, 32. 

Foreign affairs, indifference of 
Europe, 8, 9; bibliography, 
328, See also nations by 
name. 

Fox, C. J., and Shelburne, 5,6. 

France, conditions in 1782, 9- 
1 1 ; American and Spanish 
alliances, 10, 21; and treaty 
of peace, 13-24; loans, 31, 
56; peace with England, 32; 
unrequited sacrifices, 32; in- 
difference toward America, 
89. 

Franklin, Benjamin, peace com- 
missioner, 7; as a diplomat, 
8; informal negotiations, 11; 
peace proposals, 1 1 ; and his 
instructions, 1 7 ; negotiations, 
24-29; and Vergennes, 31; 
credit for treaty, 32; in 



Federal convention, 184; de- 
sires prayers, 227; on grand 
committee, 234; on draft 
Constitution, 270. 

Franklin, state of, 133-135. 

Frontier, profits by Revolution, 
71. See also West. 

Frontier posts, retention and 
trade, 74, 10 1, 104; bibliog- 
raphy, 329. 

Fugitive slaves, rendition, 117. 

Fur -trade, and retention of 
frontier posts, 74, 102. 

Gallatin, Albert, Anti-Fed- 
eralist, 312. 

Gardoqui, Diego de, negotia- 
tions, 94-101. 

Gates, Horatio, and Newburg 
address, 65. 

George III., after Yorktown, 
3; and Whigs (1782), 4; and 
Adams, 103. 

Georgia, ratification conven- 
tion, 286. 

Gerry, Elbridge, in Federal con- 
vention, 189; on popular 
election, 199, 204; on grand 
committee, 234 ; yields on rep- 
resentation, 238; fears West, 
256; refuses to sign, 273; 
Anti-Federalist, 287. 

Gibraltar, Spain desires, 10; 
not ceded, 32, 33. 

Gladstone, W. E., mistake on 
Constitution, 273. 

Gorham, Nathaniel, on com- 
mercial union, 262; Fed- 
eralist, 291. 

Government, American theories 
(1783), 40-42; constituent 
convention, 42; division of 
powers, 49, 176, 178, 223; 
genesis of territorial, 115, 
120. See also Confedera- 
tion, Constitution, Federal 
convention. 

Grayson, William, Anti-Fed- 
eralist, 299, 



INDEX 



341 



Great Barrington, Massachu- 
setts, Shays's relDellion, 161. 

Greene, Nathanael, and army- 
discontent, 62. 

Hamilton, Alexander, and 
army discontent, 60; effort 
for impost, 83; on need of 
coercive power, 170; Annap- 
olis convention report, 182; 
in Federal convention, 188, 
236; plan, 218, 219; on state 
sovereignty, 228; on small- 
state party, 229; The Federal- 
ist, 307, 308; in ratification 
convention, 310, 311, 

Hampshire resolves, 159. 

Hancock, John, and Consti- 
tution, 292, 294. 

Henry, Patrick, and naviga- 
tion of Mississippi, 99; Anti- 
Federalist, 278, 299; in rati- 
fication convention, 300-305. 

Holland, war with England, 9; 
loans, 81; American treaty 
(1782), 90. 

Independence, recognition by 
England, 13, 17. 

Indians, Spanish influence, 93; 
English influence, loi; and 
Southwest settlers, 130. 

Jay, John, peace commissioner, 
7; in Spain, 7; character, 8; 
suspicions of France, 13-24; 
breaks instructions, 16, 17; 
negotiations, 24-29; credit 
for treaty, 3 1 ; foreign secre- 
tary, 52; apprehensive (1786) 
87; negotiations with Gar- 
doqui, 94-101; on violation 
of treaty, 105; The Federalist, 
307. 308. 

Jefferson, Thomas, peace com- 
missioner, 7; on government, 
41, 175; and Tripolitan am- 
bassador, 107; western or- 
dinance, 114-117. 



Johnson, W. S., in Federal con- 
vention,! 89 ; compromise 225. 

Judiciary, state, bound by 
constitutions, 152, 153, 247— 
250; federal, in Virginia plan, 
193; to apply Constitution, 
250-252. 

Kentucky, beginnings, 131, 
132; discontent, 136. See 
also Southwest, West. 

King, Rufus, and territorial 
slavery, 117; and Northwest 
Ordinance, 125; hostile to a 
convention, 173; in Federal 
convention, 189; on state 
sovereignty, 221-223; on 
small-state demands, 233, 
238; fears West, 256; Fed- 
eralist, 291. 

Knox, Henry, on army patriot- 
ism, 63; on agitations (1786), 
142, 156; on character of 
Federalists, 287, 290. 

Land. See Public land. 

Lansing, John, in Federal con- 
vention, 188; of small-state 
party, 209; on bicameral legis- 
lature, 224; leaves the con- 
vention, 236; Anti - Federal- 
ist, 308. 

Latirens, Henry, peace commis- 
sioner, 7; captured, 7. 

Law of the land. Constitution 
as, 215, 246-252. 

Lawyers, agitation against, 157 
-159, 2S9, 290. 

Lee, R. H., fears Congress, 54; 
on coercive power, 175 ; Anti- 
Federalist, 277, 299, 

Legislation, constitutional con- 
trol of, 152, 246-251. 

Lincoln, Benjamin, secretary 
of war, 52; on agitations 
(1786), 157; and Shays's re- 
bellion, 163. 

Livingston, Robert R., foreign 
secretary, 52 ; Federalist, 308. 



342 CONFEDERATION AND CONSTITUTION 



Loyalists, and treaty of peace, 
12, 25-28; principles, 36; 
character, 37; importance of 
expatriation, 38; treatment 
after peace, 105. 

McKean, Thomas, Federalist, 
283. 

Madison, James, mental equip- 
ment, 144; fight against 
paper money, 145; and 
tobacco tender, 145; effort 
to improve Confederation, 
171; on national authority, 
178; and Annapolis conven- 
tion, 180-182; preparation 
for Federal convention, 185; 
indictment of Confederation, 
186; in convention, 187; 
notes of debates, 192; on 
representation, 197; favors 
enumerated powers, 202; au- 
thor of Virginia plan, 202; 
on veto of state laws, 206; 
on national government, 224; 
on state sovereignty, 2 28; 
on standing army, 228; on 
coercion of states, 244; on 
slave-trade, 263; in ratifica- 
tion convention, 300, 301; 
on character of Federal gov- 
ernment, 301 ; The Federalist, 
307,308; on provisional rati- 
fication, 310. 

Mails in 1783, 45. 

Marbois, letter of, 14, 19. 

Marietta founded, 126. 

Marshall, John, Federalist, 300. 

Martin, Luther, in Federal con- 
vention, 190; of small-state 
party, 209, 227, 240; on 
grand committee, 234; on 
constitution as law, 246; on 
slave-trade, 263; refuses to 
sign, 2 73 ; Anti-Federalist, 295 . 

Maryland, and western claims, 
109, no; Potomac commis- 
sion, 179; ratification con- 
vention, 295. 



Mason, George, on direct legis- 
lation, 196; on popular elec- 
tion, 199, 204; on coercion of 
states, 224; on grand com- 
mittee, 234; on influence of 
West, 257; on navigation 
laws, 262; on slavery, 263; 
refuses to sign, 273; Anti- 
Federalist, 280, 299, 303; on 
slave-trade, 304. 

Massachusetts, cedes western 
claim, in; no paper money, 
143; social discontent, 154- 
159 ; Hampshire resolves, 1 59 ; 
Shays 's rebellion, 160-166; 
proposes a convention, 173; 
discussion of Constitution, 
287-291; ratification con- 
vention, 291-295. 

Minorca ceded to Spain, 32. 

Mississippi, Spain and free 
navigation, 15. 16, 29, 91-99; 
interest of West, 100. 

Money, circulation of specie, 76 ; 
v ariety , 138; counterf ei ting 
and mutilation, 139; decimal 
ratio, 139; plan of coinage, 
140. See also Paper money, 

Monroe, James, views of West, 
118; Anti- Federalist, 299. 

Morocco treaty, 106. 

Morris, Gouverneur, and army 
discontent 61; in Federal 
convention, 187; gives form 
to Constitution, 187; sug- 
gests resolutions, 195; on 
representation, 237; fears 
West, 256; on taxation and 
representation, 258. 

Morris, Robert, superintendent 
of finances, 51; on financial 
condition, 55, 58; maligned, 
57; on economic condition 
(1783), 69; in Federal con- 
vention, 187. 

Nashville settled, 132. 
Navigation acts, American 
profit, 73; attempted con- 



INDEX 



343 



federate, 84-86; objection to 
federal power, 262. See also 
Commerce. 

New England, Revolution and 
trade, 71, 73; privateering, 
72 ; and Spanish negotiations, 
98. See also states by name. 

New Hampshire, no paper 
money, 144, 146-148; dis- 
tress, 146; Exeter mob, 147; 
ratification convention, 296. 

New Jersey, reception of Con- 
stitution , 278; ratificati on 
convention, 286. 

New Jersey plan, 212-215; de- 
bated, 215-218; rejected, 219. 

New York, blocks confederate 
impost, ^^•, cedes western 
claim, no, in; proposes a 
convention, 170; opposition 
to Constitution, 280,305; rati- 
fication convention, 308-31 T. 

Newburg address, first, 60; 
second, 63-65; Washington 
foils, 65-67. 

Newport, decay, 149-151. 

North, Lord, resigns, 4. 

North and South, 260, 265. 
See also states by name. 

North Carolina, and state of 
Franklin, 133-135; rejects 
Constitution, 312. 

Northampton, Massachusetts, 
court attacked, 160. 

Northwest Territory, Congress 
controls, 112; first plan, 113; 
slavery, 113, 116-118, 122; 
proposed ordinance (1783), 
114; Jefferson's ordinance, 
114-117 ; Ohio company, 119; 
Ordinance of 1787, 120-122; 
South and Ordinance, 123; 
authorship of Ordinance, 124 
-126; land purchases, 126; 
first settlement, 126; land 
system, 127; bibliography, 
330. See also West. 

Nullification not intended by 
framers, 315. 



Ohio Company, formed, 119; 
purchases land, 120, 126; 
settlement, 126. 

Oswald, Richard, informal ne- 
gotiations, 6, 11; character, 
12; commission, 12, 17. 

Paine, Tom, political theory, 
40. 

Paper money, depreciation, 55; 
post - Revolutionary agita- 
tion, 140-143; states which 
resisted, 143; contest in Vir- 
ginia, 144-146 ; in New Hamp- 
shire, 146-148; Rhode Isl- 
and's experiences, 148-153; 
in Massachusetts, 154, 158; 
bibliography, 331. 

Parsons, Eli, in Shays's re- 
bellion, 163, 164. 

Parsons, S. H., in Ohio com- 
pany, 119. 

Parsons, Theophilus, Federal- 
ist, 291. 

Paterson, William, in Federal 
convention, 189; on repre- 
sentation, 209; New Jersey 
plan, 212-216; on grand 
committee, 234. 

Peace of 1783, control of ne- 
gotiations in England, 6; 
English commissioners, 6,12, 
25; American commissioners, 
6-9, 26; congressional in- 
structions, 10, 16, 17; in- 
formal propositions, 11; pre- 
cedent recognition of inde- 
pendence, 13, 17; attitude of 
France, 13-24; negotiations, 
24-28; preliminary treaty, 
28, 29; Vergennes on, 29-31; 
reception, 30; credit for, 31; 
French - Spanish - English 
treaties, 32 ; definitive treaty, 
33; Spanish objections, 91, 
92; disregard of treaty, 102, 
104—106; bibliography, 324- 
326. 

Pennsylvania, mutiny of troops, 



344 CONFEDERATION AND CONSTITUTION 



68; discussion of Constitu- 
ton, 281-283 ; ratification con- 
vention, 283-286; rejoicing, 
286. 

Pickering, Timothy, and west- 
em settlement^ 113; and 
territorial slavery, 117. 

Pinckney, Charles, in Federal 
convention, 190; plan, 194; 
on popular election, 204; on 
veto of state laws, 205; on 
slave-trade, 262; on national 
government, 296. 

Pinckney, C. C.,in Federal con- 
vention, 190; on New Jersey 
plan, 217; moves grand com- 
mittee, 234; on slave-trade, 
263. 

Pioneers, character of western, 
130, 136. See also West. 

Population, West (1785), 95. 

Portugal, American trade, 76, 
90. 

Potomac River, interstate com- 
mission, 179. 

President, requirements of, 266; 
method of electing, 267-270. 

Privateering during Revolution, 
72. 

Prussia, treaty with (1785), 90. 

Public debt, foreign loans, 31, 
56, 81; amount (1783), 59; 
(1784, 1789), 81; interest de- 
faulted, 81. 

Public lands, bounties to 
soldiers, 113; genesis of sys- 
tem, 127 ; provision for educa- 
tion, 127. 

Putnam, Rufus, and western 
settlement, 114, 119. 

Randolph, Edmund, offers Vir- 
ginia plan, 192; favors enu- 
merated powers, 202; on 
New Jersey plan, 217; on 
slave representation, 260; 
on slave-trade, 265; refuses 
to sign, 273; Federalist, 300. 

Ratification of Constitution, 



action of Congress, 277; re- 
ception of draft, 278, 280, 
287; elements of opposition, 
278-280, 287-291,306; Wash- 
ington's influence, 280, 293, 
299; Pennsylvania conven- 
tion, 281, 283-286; geog- 
raphy oi opposition, 281, 
289, 299, 305; pamphlets, 
281, 282, 287; fear of con- 
solidated government, 283, 
288, 301-303; demand for 
bill of rights, 283, 288; 
federal liberty, 284; Dela- 
ware convention, 286; New 
Jersey convention, 286; 
Georgia convention, 286 ; Con- 
necticut convention, 287; op- 
position in Massachusetts, 
281-291; character of Fed- 
eralists, 290, 291; Massachu- 
setts convention, 291-295; 
amendments recommen ded , 
294, 295, 304, 311; Mary- 
land convention, 295; South 
Carolina convention, 296; 
New Hampshire convention, 
296; opposition in Virginia, 
298; Virginia convention, 
299-305; power of taxation, 
303 ; treaty-making power, 
303; exclusive jurisdiction, 
303; slavery clauses, 304; 
opposition in New York, 305 ; 
federal imposts, 306 ; The Fed- 
eralist, 307, 308; New York 
convention, 308-311; system 
of representation, 309; pro- 
visional ratification, 310; agi- 
tation for second convention , 
311; North Carolina rejects, 
312; Rhode Island ignores, 
312; bibliography, 318-324, 

334-33^- 

Rayneval, and Jay, 14; visit to 
England, 16, 19. 

Religion, freedom of, in Ordi- 
nance of 1787, 121; provision 
for, by Ohio Company, 127. 



INDEX 



345 



Representation, proportional, 
debate in convention, 197- 
199, 207-211, 227-239; com- 
promise, 235, 238, 239; real 
difficulty as to Senate, 232; 
principle of proportionment, 
254-258; slave, 255, 257- 
260; and taxation, 258. 

Requisitions, failure, 69, 80; 
attempt to change basis, 

79- 

Reserved powers of states, 295. 
See also Division of pow- 
ers. 

Revenue, inadequate confed- 
erate, 69, 80, 82; attempt to 
improve, 53-55, 79, 82, 83. 
See also Finances. 

Revolution, European situa- 
tion (1782), 9-1 1 ; post-war 
problems, 35; as civil war, 
35; parties, 36-38; social 
effect, 38, 142, 166; and 
constituent convention, 42; 
effect on trade, 71-75; priva- 
teering, 72. See also Peace 
of 1783. 

Rhode Island, and confederate 
impost, 53; distress, 149; en- 
forcement of paper tender, 
149-153; Weeden case, 151- 
153; and Constitution, 190, 
312. 

Roads in 1783, 45. 

Robertson, James, at Watauga, 

131- 

Rockingham, Lord, ministry, 
4-6. 

Rush, Benjamin, opposes bill 
of rights, 283. 

Rutledge, John,in Federal con- 
vention, 190; on grand com- 
mittee, 231;; on slave-trade, 
263. 

St. Clair, Arthur, governor 
of Northwest Territory, 126. 

Scioto Company land pur- 
chase, 126. 



Secession not intended by 
framers of Constitution, 314. 

Sectional antagonism, in Fed- 
eral convention, 260, 265; 
and ratification , 279, 299. 

Self-government, pioneer, 132, 

134-137- 

Sevier, John, at Watauga, 131. 

Shattuck, Job, in Shays's re- 
bellion, 160, 162. 

Shays's rebellion , causes of, 1 54- 
160; attacks on courts, 160- 
162; and Governor Bowdoin, 
161; leader of , 161, 164; and 
legislature, 161; retreat from 
Worcester, 162; conflict at 
Springfield, 163; pursuit a.nd 
rout, 163 ; collapse of, 164; no 
punishments, 164; and Con- 
gress, 165 ; eft'ectof, 166 ; bibli- 
ography, 332. 

Shelburne, Lord, and Fox, 5, 
6; premier, 6; and terms of 
peace, 11, 27. 

Shepard, William, and Shays's 
rebellion, 163, 

Sherman, Roger, in Federal 
convention, 189; on popular 
election, 199; of small-state 
party, 209, 211; compromise, 
226; on veto of state laws, 
246. 

Ship-building, decrease of, 75. 

Slave-trade, constitutional de- 
bate and provision, 262; 
opposition in ratification con- 
ventions, 304. 

Slavery, exclusion from North- 
west Territory, 113, 1 1 6-1 18, 
122; representation, 255, 257- 
260. 

Smilie, John, Anti-Federalist, 
283. 

Smith, Melancthon, Anti-Fed- 
eralist, 277, 308; ratifies, 311. 

Social conditions, effect of 
Revolution, 38, 142, 166; 
agitations (1786), 140-143, 
148, 154-157; influence on 



346 CONFEDERATION AND CONSTITUTION 



ratification, 289, 291; bibli- 
ography,320. 
Sources, on Federal convention, 
192, 322, 333; on Confedera- 
tion, 322; on ratification, 
322, 334, 335; writings, 322- 
324; on Peace of 1783, 324, 
325; on foreign affairs, 328, 

South, Revolution and econom- 
ic condition, 75; and navi- 
gation of Mississippi, 98, 99; 
and slavery in territories, 
116, 123; and North, 260, 
265. See also states by 
name. 

South Carolina, ratification con- 
vention, 296. 

Southwest, Spanish intrigue, 
93, 100, 136; rapid settle- 
ment, 95, loi; and Union, 
99-101, 129; and navigation 
of Mississippi, 100; method 
of settlement, 128; influence 
of topography, 128; charac- 
ter of settlers, 130, 136; Ind- 
ian hostility, 130; Watauga 
settlement, 131; Boones- 
borough and Nashville, 132; 
pioneer self-government ,132, 
133; state of Franklin, 133- 
135; bibliography of Spanish 
intrigue, 328; bibliography 
of period 1781-1788,330. See 
also West. 

Sovereignty of states, 221-223, 
228, 237. See also Federal 
convention. 

Spain, Jay's experience, 7; 
and Revolution, 9-1 1, 21, 
33, 91; and American boun- 
daries, 14—16; treaty of 
peace, 32; distrust of Amer- 
ica, 90 ; objects to treaty, 
91-93; methods of opposi- 
tion, 93; Gardoqui-Jay ne- 
gotiations, 90-101; proposed 
commercial treaty, 97-99; 
intrigtie in Southwest, 100, 



136 ; bibliography of intrigue, 
328. 

Springfield, Massachusetts, 
Shays's rebellion, 161, 163. 

States, constitutions, 42, 47; 
similarity of structure, 46; 
under Confederation, 48-50; 
conflicting trade regulations, 
86, 173; disregard of treaties, 
174; sovereignty, 221-223, 
228, 237; reserved powers, 
295. See also Confedera- 
tion, Federal convention, 
Ratification, and states by 
name. 

Strachey, Henry, peace com- 
missioner, 25. 

Strong, Caleb, in Federal con- 
vention, 238; Federalist, 291. 

Sweden, treaty with (1783), 90. 

Taxation, power withheld 
from Confederation, 50; at- 
tempted import duty, 53- 
55, 79, 82, 83; desire to 
shirk, 57, 70; power neces- 
sary to Confederation, 173; 
direct, and representation, 
258; opposition to federal 
power, 288, 302, 303, 306. 

Tender laws, demanded, 140. 

Tennessee, foundation of, 131. 
See also Southwest, West. 

Territories, genesis of govern- 
ment, 115, 120; future state- 
hood, 115, 121. See also 
Northwest Territory. 

Thompson, Charles, on econom- 
ic conditions (1783), 78. 

Trade. See Commerce. 

Travel in 1783, 45. 

Treaties, Dutch (1782), 90; 
Swedish (1783), 90; Prussian 
(1785), 90; Morocco (1787), 
107. See also Peace of 

178.3. 
Treaty power, confederate, 174; 

federal. 303. 
Tripoli, demands of, 106. 



INDEX 



34? 



Tyler, John, opposition to 
slave-trade, 304. 

Union, problem of organiza- 
tion, 35-43. 46, 31^6; geo- 
graphical and historical in- 
fluences, 44-46; Continental 
Congress, 47 ; influence of 
army, 62; Washington on 
(17S3), 70; attitude of West, 
99-101, 129. See also Con- 
federation, Federal conven- 
tion. 

Varnum, J. M., defence of 

Weeden, 152. 
Vaughan, Benjamin, and Jay, 

17- 

Vergennes, Count de, and 
Adams, 6; fear in 1782, 9; 
Jay's suspicions, 13-24; on 
treaty of peace, 29-31. 

Veto on state laws, 202, 205- 
207, 246, 249. See also 
Coercion. 

Virginia, and confederate im- 
post, 54; cession of western 
claims, 110,111; contest over 
paper money, 144; tobacco 
tender, 145; Potomac com- 
mission, 179; and commercial 
powers, 180; calls Annapolis 
convention, 181; opposition 
to Constitution, 2 98; ratifica- 
tion convention, 299-305. 

Virginia plan, 192-194; au- 
thor, 202 ; adopted, 211, 
219. 

Washington, George, on the 
disaffected, 36; and New- 
burg address, 65-67; letter 
to states (1783), 70; on 
conditions in 1786, 87, 166; 
on relations with West, 99; 
on settlement of Marietta, 
126; on need of coercive 
power, 169, 175; and Poto- 
mac commission, 180; on 



state rights, 183; in Federal 
convention, 184, 185, 191; 
letter to Congress (1787), 
277; influence for ratifica- 
tion, 280, 293, 299. 

Watauga settlement, 131; self- 
government, 132; state of 
Franklin, 133-135. 

Webster, Noah, on coercive 
power, 177, 

Webster, Peletiah, on coer- 
cive power, 178; Federalist, 
282. 

Weeden, John, trial, 151- 

153- 

West, state claims, 108, 109; 
Maryland's demand, 109; 
policy of Congress, no, in; 
statecessions, i lo-i 12 ; Jeffer- 
son's ordinance, 114-117; in- 
fluence feared, 118, 254, 256, 
257; bibliography, 329-331. 
See also Northwest, South- 
west. 

West Indies, British trade reg- 
ulations, 74, 105. 

Western Reserve, 112. 

Whitehill, Robert, Anti-Fed- 
eralist, 283. 

Wilkinson, James, intrigue with 
Spain, 100, 136. 

Williamson, Hugh, on slave 
representation, 258; on slave- 
trade, 263. 

Wilson, James, in Federal con- 
vention, 1 88; on popular 
election, 199, 204; on New 
Jersey plan, 216; on state 
sovereignty, 228; on small- 
state demands, 230; com- 
promise plan, 232; on direct 
legislation, 242; on influence 
of West, 257; on slave rep- 
resentation, 260; on power 
of Senate, 269; speech on 
ratiflcation, 282; in ratifica- 
tion convention, 284; on fed- 
eral republic and federal lib- 
erty, 284. 



348 CONFEDERATION AND CONSTITUTION 



Worcester, Massachusetts, court 
attacked, i6o, 162. 

Yates, Robert, in Federal con- 
vention, 188; of small-state 



party, 209; on grand com- 
mittee, 234; leaves conven- 
tion, 236. 
Yorktown, effect in England, 
3- 



END OF VOL. X. 



SMITHSONIAN INSTITUTION LIBRARIES 



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